FalconStor Third Party Support Services Agreement

FalconStor Software, Inc. (“FalconStor”) has agreed to perform support services to you in relation to certain third-party software products (“Third Party Software”) pursuant to the terms set forth in this Agreement.

1. Services. Subject to the terms and conditions of this Agreement, and conditioned on your compliance therewith, FalconStor will provide services to you as set forth herein.

2. Scope of Services. FalconStor will use commercially reasonable efforts to resolve any incidents relating to the Third Party Software reported by you.

3. Response Time. FalconStor shall use commercially reasonable efforts to respond to incidents reported by you within the timeframes set forth in the FalconStor Support Handbook.

4. Remote Services. You acknowledge and agree that FalconStor may provide remote services to you to assist in analyzing and resolving any incident. You agree to provide FalconStor with access to your network, system, and/or computers to install and use any remote access software that is necessary for FalconStor to provide the remote services to you. The remote access software contains technological measures designed to collect and transmit to FalconStor certain diagnostic, technical, usage, and related information, including information about your computers, systems, network, and any materials relating to or derived from your use of the Third Party Software. You acknowledge and agree that: (a) FalconStor may collect, maintain, process, and use this information in the course of performing the services under this Agreement; and (b) all or portions of the remote access software may remain on your network, systems, and/or computers even after an incident is resolved.

5. Limitations.
   
   1. FalconStor has the sole right to determine, in its reasonable discretion: (i) what constitutes an incident; and (ii) when an incident is deemed to be resolved.
   2. FalconStor will use commercially reasonable efforts to: (i) respond within the applicable response times provided in Section 3; and (b) resolve an incident, but does not guarantee that it will be able to respond within that specific time period or that any incident will be resolved.
   3. This Agreement does not contemplate on-site support. FalconStor will provide on-site support only with separate fees, agreed upon between you and FalconStor.
   4. You acknowledge and agree that FalconStor is not responsible or liable for the Third Party Software in any manner. FalconStor makes no representations or warranties of any kind in relation to the Third Party Software, including but not limited to, fitness for a particular purpose and/or non-infringement.

6. Exceptions. FalconStor has no obligation to provide services relating to incidents that, in whole or in part, arise out of or result from any of the following:
   
   1. Any software, or the media on which it is provided, that is modified or damaged by you or any third party;
   2. Any operation or use of, or other activity relating to, the Third Party Software other than as specified in the documentation for the same, including but not limited to, any incorporation in the Third Party Software of, or combination, operation or use of the Third Party Software in or with, any technology or service not specified for your use in the documentation;
   3. Any negligence, abuse, misapplication, or misuse of the Third Party Software;
   4. The operation of, or access to, your system, network, and/or computers;
   5. Any breach of or noncompliance with any provision of this Agreement or any Software License Agreement between you and any third party; or
   6. Any force majeure event (including abnormal physical or electrical stress).

7. Fees; Payment Terms.
   
   1. You shall pay to FalconStor the fees and other amounts upon which you and FalconStor have agreed.
   2. All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on FalconStor’s income.
   3. If you fail to make any payment when due then, in addition to all other remedies that may be available to FalconStor, FalconStor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. If such failure continues for more than ten (10) calendar days following written notice thereof, FalconStor may suspend performance of the services until all past due amounts, including interest, have been paid, without incurring any obligation or liability to you or any other party by reason of such suspension.
   4. All amounts payable to FalconStor under this Agreement shall be paid by you to FalconStor in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

8. Term and Termination.
   
   1. The term of this Agreement commences as of the date you make your first payment for services hereunder and will continue in effect for a minimum of three (3) months until terminated earlier as provided herein.
   2. This Agreement may be terminated at any time by either party by providing the other party with a one (1) month notice of termination.
   3. This Agreement may be terminated by either party, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured more than ten (10) days after the non-breaching party provides the breaching party with written notice of such breach.

9. DISCLAIMER OF WARRANTIES. THE SERVICES PROVIDED BY FALCONSTOR ARE PROVIDED “AS IS.” FALCONSTOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FALCONSTOR MAKES NO WARRANTY OF ANY KIND THAT THE THIRD PARTY SOFTWARE AND/OR THE SERVICES WILL MEET YOUR OR ANY OTHER PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, OR MATERIALS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD PARTY SOFTWARE AND ANY OTHER THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD PARTY SOFTWARE OR OTHER THIRD PARTY MATERIALS. THIS AGREEMENT DOES NOT AMEND, AUGMENT, OR OTHERWISE MODIFY FALCONSTOR’S WARRANTIES UNDER ANY SEPARATE LICENSE AGREEMENT RELATING TO FALCONSTOR’S SOFTWARE OR OTHER PRODUCTS.

10. Limitations of Liability.
    
    1. IN NO EVENT WILL FALCONSTOR, FALCONSTOR PERSONNEL, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) LOSS OF USE, DATA, BUSINESS, REVENUE, PROFIT, GOODWILL, OR REPUTATION, (II) BUSINESS INTERRUPTION, INCREASED COSTS, OR DIMINUTION IN VALUE, OR (III) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF FALCONSTOR AND ITS PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES OR OTHER PAYMENTS YOU HAVE MADE TO FALCONSTOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PROCEEDING THE EVENTS GIVING RISE TO THE ALLEGED CLAIM.

11. Export Regulation. The Third Party Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You will not directly or indirectly, export, re-export, or release the Third Party Software to, or make the Third Party Software accessible from, any country, jurisdiction, or party to which export, re-export, or release is prohibited by applicable law. You will comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Third Party Software available outside the US.

12. Miscellaneous.  FalconStor retains all rights not expressly granted herein. Nothing in this Agreement constitutes a waiver of FalconStor’s rights under any laws. This Agreement is non-exclusive. Any delay by FalconStor to enforce any of its rights hereunder shall not be deemed a waiver. This Agreement is governed by the laws of the State of Texas without giving effect to its conflict of law principles. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Travis County, Texas or the federal courts in the Western District of Texas to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This Agreement represents the complete agreement concerning these services and may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.