Loading...
HomeMy WebLinkAboutContract 57605-R2CSC No. 57605-R2 CITY OF FORT WORTH CONTRACT RENEWAL NOTICE March 30, 2023 EC America, Inc. Attn: Legal Department 8444 Westpark Drive, Suite 200 McLean, VA 22102 Re: Contract Renewal Notice Contract No. CSC No. 57605 (the "Contract") Renewal Term No. 2: June 27, 2023 to June 26, 2024 The above referenced Contract with the City of Fort Worth expires on June 26, 2023 (the "Expiration Date"). Pursuant to the Contract, contract renewals are at the sole option of the City. This letter is to inform you that the City is exercising its right to renew the Contract for an additional one (1) year period, which will begin immediately after the Expiration Date. All other terms and conditions of the Contract remain unchanged. Please return this signed acknowledgement letter and current insurance certificate, to the address set forth below, acknowledging receipt of the Contract Renewal Notice. To ensure that your company information is correct and up-to-date, please log onto PeopleSoft Purchasing at https://www.fortworthtexas. og v/departments/finance/purchasing_ If you have any questions concerning this Contract Renewal Notice, please contact me at the telephone number listed below. Sincerely, Katie May Administrative Assistant 200 Texas Street Fort Worth, TX, 76102 Katherine. may(a, fortworthtexas. gov (817) 392 - 8894 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Contract Renewal Page 1 of 2 [Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED AND AGREED:] City: By: Valerie Washington (Apr 24, 202310:52 CDT) Name: Valerie Washington Title: Assistant City Manager Date: Apr24,2023 EC America, Inc.: ld ej� � �l%u By: Name: Richard J Nordberg JR Title: Sales Manager Date: 04/03/2023 CITY OF FORT WORTH INTERNAL ROUTING PROCESS: Approval Recommended: By: Name: Kevin Gunn Title: Director, IT Solutions Approved as to Form and Legality By: Name Title: Taylor Paris Assistant City Attorney Contract Authorization: M&C: N/A Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: Name: Title: Steven Vandever(Apr 17,202309:59 CDT) Steven Vandever Sr. IT Solutions Manager City Secretary: By: Name: Title: Jannette Goodall City Secretary govopn a,f F FORT�0 °moo 0 9 d P� dvo s=d° ddp*, .o.o- 1444, nEXA?o'Oa OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Contract Renewal Page 2 of 2 EC America, Inc. a subsidiary of = immixGroup Sales Quotation Zachary Martin Fort Worth Police Department PH: - Zachary.Martin@fortworthtexas.gov uote Number: QUO-1367401-VOJ3J7 uote Date: 3/29/2023 xpiration Date: 4/29/2023 Contract No.: GS-35F-0511T CAGE Code: 1QTH6 DUNS No.: 01-757-3259 TAX ID#: 52-2085893 Terms: Prepaid FOB: Destination Order Address: EC America 8444 Westpark Drive, Suite 200 McLean, VA 22102 PH:703-752-0610 FX:703-752-0611 C America Contact: Pieper, Maclay macla ie er immix rou .com 77 anufacturer Quote #: RC703063 PAanufacturer Contact: Ramirez, Dan anufacturer Ref #: 1 1(519) 888-7111 ext: 83097 dramirez@opentext.com Item Part Number Contract Trans Type Product Description Qty Price Extended Price 1 1000056312 OPENMARKET- EC MINT EnCase Extended Support/Limited Extended Support— TRUSTED PRODUCT'* 1 1 $901.3600 $901.36 Period of Performance: 8/22/2023 to 8/21/2024. 2 �10000451135 GS-35F-0511T �MNT EnCase Forensic Maintenance(23% of License Sale Price, Year 1. Year 2+ includes annual uplift of 5%.)"* TRUSTED PRODUCT'* 1 $4,458.0400 $4,458.04 Period of Performance: 8/22/2023 to 8/21/2024. 3 1000047413 GS-35F-0511T MNT I Guidance Prime Protect— TRUSTED PRODUCT 1 1 1 $86.5600 $86.56 Period of Performance: 8/22/2023 to 8/21/2024. SW MAINTENANCE $5,445.96 Grand Total $5,445.96 G3002085416 G3002087655 G3002087659 G3002087658 G3002087657 Subject to the Terms and Conditions of GSA MAS Contract Number GS-35F-051 1 T; See: http://www.immixgroup.com/contract- vehicles/gsa/it-70/0511 T/ Open Market items are subject to the attached Terms and Conditions. Taxes: Sales tax shall be added at the time of an invoice, unless a copy of a valid tax exemption or resale certificate is provided. All Purchase Orders must include: End User Name, Phone Number, Email Address, Purchase Order Number, Government Contract Number and Our Quote Number, Bill -To and Ship -To Address (Cannot ship to a PO Box), Period of Performance (if applicable), and a Signature of a duly Authorized Representative. The identified line items are Trusted Products under the immixGroup Trusted Supplier Program. immixGroup Trusted Supplier Program Policies, Commitments and Guarantees/Warranties can be obtained at: http://www.immixgroup.com/uploadedFiles/Trusted-Supplier-Program_Guarantee-and-Warranty.pdf All Pricing information is confidential Paae 1 of 1 Quote # QUO-1367401-VOJ3J7 EC America, Inc. a subsidiary of Q immixGroup Addendum to License Agreement or Terms of Use EC America, Inc. ("Offeror") hereby submits this Addendum as an attachment to any proposed End User License Agreement, Terms of Use or other similar document pertaining to terms and conditions ("EULA") submitted with Offeror's quotation. All references to the manufacturer/licensor/vendor in the attached EULA should be read as "Contractor (EC America, Inc.) acting by and through its supplier." The Government accepts commercial terms in a license agreement only to the extent that those terms do not conflict with Federal law and only to the extent those terms meet the Government's needs. Therefore, Offeror hereby agrees to the following modifications of the EULA to remove any inconsistencies with Federal procurement laws and to meet the Government's needs. The term "Government" in this Addendum includes any U.S. federal, state, local, regional or tribal government, or any instrumentality thereof. If the customer is that of a state, local, regional or tribal government, some of the Federal laws and regulations referenced below may not apply to customer. To the extent a Federal law or regulation listed below does not apply to customer, such provision shall be replaced by a provision that, to the extent permitted by applicable law, achieves the same purposes intended under the Federal law or regulation. Offeror agrees that in the event of any conflict or inconsistency between the terms in this Addendum and the terms of any proposed EULA, the terms of this Addendum will supersede and be controlling. The Offeror acknowledges that this Addendum will become a binding part of its contract with the Government in the event its quotation is accepted and selected for award. General Indemnity (by the The Government does not agree to indemnify any party because such agreements may government) violate the Anti -Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause is hereby modified as follows: Recourse against the United States for any alleged breach of this agreement must be as a dispute under the contract disputes clause (Contract Disputes Act). While a dispute is pending, the Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer. Patent Indemnity (by the contractor) Clauses giving the contractor sole control over any claims or disputes involving patent or other intellectual property infringement are not allowable, insofar as only the US Department of Justice is authorized to represent the US Government, per 28 U.S.C. § 516. Any clause giving entire control of litigation to a contractor is hereby modified as follows: If a third party claims that products or services delivered under this contract infringe that party's patent or copyright, and the contractor is obligated to indemnify, defend and hold harmless the Government against such claim pursuant to the EULA, the contractor shall permit the Government to participate in the defense, at the Government's sole cost and expense. The Government shall make every effort to fully participate in the defense and/or in any settlement of such claim. However, the contractor understands that such participation will be under the control of the U.S. Department of Justice, per 28 U.S.C. § 516. Automatic renewals (e.g., term The Government does not agree to any automatic renewal provisions because such licenses for software or software agreements may violate the Anti -Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such maintenance that renew automatically clause is hereby modified as follows: and renewal charges are due automatically unless the government If any license or service tied to periodic payment is provided under this agreement takes action to opt out or terminate) (e.g., annual software maintenance), such license or service shall not renew automatically upon expiration of its current term without prior express Government approval by a warranted contracting officer. Audit Any clauses that give the contractor the right to audit the Government's use of software licenses may not meet the Government's needs as a matter of security. Any such clause is hereby modified as follows: EC America, Inc. Page 1 reformatted 03.01.2022 At Contractor's written request, but not more frequently than annually, the Government shall furnish Contractor with a document signed by the Government's authorized representative verifying that the software is being used pursuant to the provisions of this contract. To the extent permitted by and subject to the Government's applicable security requirements (including, but not limited to, use of cleared personnel, badging and other requirements), Contractor reserves the right to audit the Government's use of the software no more than once annually at Contractor's expense. Contractor shall schedule any audit at least thirty (30) days in advance. Any such audit shall be conducted during regular business hour at the Government's facilities and shall not unreasonably interfere with the Government's business. Attorney fees and costs; equitable The Government does not agree to any clauses relating to the award of attorney's fees and relief costs or equitable relief because they may violate the Anti -Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Any such clause is hereby modified as follows: Equitable relief and the award of attorney's fees, costs, or interest are only allowed to the extent permitted by statute (e.g., the Prompt Payment Act or Equal Access to Justice Act). Disputes will be resolved according to the disputes clause. Taxes The Government does not agree to any clauses purporting to make the Government responsible for all taxes. Any taxes the vendor believes to be payable by the Government must be submitted individually to the contracting officer for adjudication or included in the firm -fixed price. Incorporating other License Terms by Terms provided in other documents or websites do not bind the Government unless those Reference, Including Reference to a terms are referenced in the license agreement and submitted with the proposal. Any such Website clause is hereby modified as follows: Any license agreement provisions or terms of use unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract are not enforceable against the Government. Venue; Choice of Law The Government does not agree to any venue, jurisdiction, or choice of law clauses and does not consent to jurisdiction in any U.S. state courts. Any such clause is hereby modified as follows: Venue and jurisdiction for any disputes are determined by the applicable federal statute (e.g., Contract Disputes Act) or by the Federal Acquisition Regulation. Any disputes arising under or related to this contract and license agreement will be governed by applicable federal statutes and regulations, not the laws of any particular U.S. state. Arbitration The Government does not agree to any provisions relating to mandatory arbitration. Disputes must be resolved in accordance with applicable federal statutes (e.g., Contract Disputes Act) and regulations. Equitable remedies, injunctions The Government does not agree to any clauses consenting to or entitling the contractor to equitable relief or injunctions. Equitable relief for copyright, trademark, or patent infringement by the Government is only available to the extent permitted by federal statutes. Unilateral termination by contractor The Government does not agree to any clauses permitting unilateral termination of the for breach contract or license agreement by the contractor. Any such clause is hereby modified as follows: Recourse against the United States for any alleged breach of this agreement must be made under the terms of the contract disputes clause (Contract Disputes Act). While a dispute is pending, the Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and must comply with any decision of the Contracting Officer. Unilateral modification The Government does not agree to any provisions giving the contractor the right to unilaterally make material changes to the license terms, with or without notice to the customer. EC America, Inc. Page 2 reformatted 03.01.2022 Assignment by licensor The Government does not agree to any license terms providing for assignment by the licensor. Any such clause is hereby modified as follows: Assignment of Government contracts without the Government's prior approval is prohibited by statute, except for assignment of payment to a financial institution, which must comply with the Assignment of Claims Act (31 U.S.C. § 3727, 41 U.S.C. § 15) and Federal Acquisition Regulation Subpart 32.8. Confidentiality The Government does not agree to any clauses asserting that unit prices or license agreement terms are confidential or proprietary information. Any such clause is hereby modified as follows: Neither the license agreement nor the price list shall be deemed "confidential" or "proprietary" information notwithstanding any marldng to that effect. The Freedom of Information Act (FOIA) governs what information must be disclosed and what information may be withheld by the Government. Inspection/Acceptance The Contractor can only, and shall only tender for acceptance those items that substantially conform to the manufacturer's published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services that have been delivered. The Government may require repair or replacement of nonconforming supplies or re -performance of nonconforming services at no increase in contract price. If repair/replacement or re -performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post -acceptance rights- (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item. EC America, Inc. Page 3 reformatted 03.01.2022 opentext M End User License Agreement (USA) This End User License Agreement ("EULA") is between the OpenText entity specified in the signature block below ("OT") and the licensee specified in the signature block below ("Licensee") and is effective on the last signature date ("Effective Date"). OT and Licensee agree as follows: 1.0 Definitions "Affiliate" means any entity controlled by, controlling, or under common control with a party to this EULA. Control exists through ownership, directly or indirectly, of a majority of the outstanding equity capital and of the voting interests of the subject entity. If an entity ceases to meet these criteria, it will cease to be an Affiliate under this EULA; "Claim" means claims, suits, actions or proceedings brought against Licensee in a court of competent jurisdiction in a Covered Country by a third party which allege an infringement of the third party's patent, copyright, or trade secret rights existing under the laws of the Covered Country; "Confidential Information" means information, whether or not in physical form, all oral communications, documents and other information, disclosed by a party to the other which: (a) is by its nature or circumstances surrounding its disclosure is, or could reasonably be expected to be regarded as, confidential to the disclosing Party; (b) is marked or otherwise designated "confidential" by the disclosing Party; or (c) the disclosing Party informs the receiving Party is confidential or a trade secret; "Covered Countries" means each contracting party to The Patent Cooperation Treaty (currently published at http://www.wipo.int/l)ct/en/) and "Covered Country" means one of them; "Documentation" means user guides, operating manuals, and release notes in effect as of the date of delivery of the applicable Software, made generally available by OT; "Fees" means Licensee Fees and/or Maintenance Fees, as applicable; "License Documents" means this EULA including any addenda, the License Model Schedule, all Transaction Documents (including pricing information), Documentation, the document entitled Third Party Notifications (as applicable) available at www.opentext.com/agreements, and any other documents provided by OT setting out permitted uses of the Software; "License Fees" means all non-refundable fees payable by Licensee to OT with respect to the granting of Software Licenses; "License Model" means the description of the conditions, limitations and restrictions associated with the Software License which govern the use of the Software, as set out in the applicable License Model Schedule; "License Model Schedule" for each individual Software License means the version of the document(s) entitled "License Model Schedule" applicable to the licensed Software posted at http://www.opentext.com/agreements in effect on the date of the applicable Transaction Document; "Physical Media" means the physical media or hardware containing or enabling Software; "Reseller means an authorized OT reseller; "Software" means the software products, Documentation, and Support Software licensed to Licensee under this EULA, including all copies made by Licensee and may, where the meaning so implies, refer to all of the Software or portions thereof; "Software License" means a license for the Software granted under this EULA to the Licensee; "Maintenance Fees" means the non-refundable fees payable annually by Licensee to OT for Support Services; "Support Handbook" means the then current version of the software maintenance program handbook published at www.opentext.com/agreements; "Support Services" means the software maintenance and support services described in the Support Handbook; "Support Services Term" means each twelve (12) month period beginning on the date the Software is delivered by OT to Licensee (which may be accomplished by making the Software available by electronic download) or the anniversary thereof. "Support Software" means all maintenance and support software, updates, upgrades, patches, fixes, modifications, ported versions, or new versions of the Software provided to Licensee as part of Support Services, together with all related Documentation provided to Licensee pursuant to such program; "Taxes" means the sales, use, consumption, goods and services, and value-added taxes imposed by the appropriate governments arising out of granting of licenses and delivery of Software or the delivery of Support Services, under this EULA, except taxes imposed on OT's income; "Third Party Software" means software products owned and licensed directly by third parties to the Licensee; "Transaction Document" includes: a) a written order schedule signed by both parties which references this EULA, b) a quotation issued by OT and signed by the Licensee, c) an invoice issued by OT, d) a renewal notice issued by OT or an Affiliate for Support Services, or e) any other document that references this EULA and is agreed to by OT in writing. If and to the extent of any inconsistency between two or more Transaction Documents, the priority of the Transaction Documents will be interpreted in the order listed above. All Transaction Documents are governed by this EULA. 2.0 Ownership of the Software 2.1 Ownership. None of the Software is being sold. All ownership, intellectual property, and other rights and interests in the Software remain solely with Open Text Corporation, its Affiliates or its licensors. The source code of the Software is a trade secret of Open Text Corporation, its Affiliates or its licensors, and is their confidential information. 3.0 License Grant 3.1 Grant of License. Except as otherwise stated in the License Documents and subject to Licensee's payment of the License Fees and Taxes in full, OT grants to Licensee a non -transferable (except as provided herein), worldwide, nonexclusive, perpetual (unless stated EC America, Inc. Page 4 reformatted 03.01.2022 to be a time limited term), internal business use license (unless otherwise stated in the License Model Schedule) to download, install and execute the Software identified in the applicable Transaction Document in object code only, subject to the License Models, restrictions, quantities, conditions, and limitations stated in the License Documents. OT reserves all rights not expressly granted to Licensee in a written document signed by both parties. 3.2 Applicable License Models. The License Model and any restrictions for the Software will be stated in the Transaction Document. If no License Model or restrictions are specified in the Transaction Document, the License Model (and any capacities) for which OT has been paid License Fees will apply. 3.3 Allocation of Licenses to Affiliates. Unless prohibited under the applicable License Document, the Licensee may allocate Software Licenses to its Affiliates, provided: (a) the Licensee remains responsible for the Affiliate's compliance with the License Documents; and (b) the Licensee is liable for any breach of the License Documents by an Affiliate. 4.0 Authorized Copies 4.1 Software and Documentation. Licensee may make as many copies of the Software necessary for it to use the Software as licensed. Each copy of the Software made by Licensee must contain the same copyright and other notices that appear on the original copy. Licensee will not modify the Documentation. Documentation may: (a) only be used to support Licensee's use of the Software; (b) not be republished or redistributed to any unauthorized third party; and (c) not be distributed or used to conduct training for which Licensee, or any other party, receives a fee. Licensee will not copy any system schema reference document related to the Software. 5.0 Restrictions 5.1 General Restrictions. Except as provided in the License Documents, Licensee will not and will not permit any other party to: (a) assign, transfer, give, distribute, reproduce, transmit, sell, lease, license, sublicense, publicly display or perform, redistribute or encumber the Software by any means to any party; (b) rent, loan or use the Software for service bureau or time-sharing purposes, or permit other individuals or entities to create Internet "links" to the Software or "frame" or "mirror" the Software on any other server or wireless or Internet - based device, or in any other way allow third parties to access, use, and/or exploit the Software; (c) use the Software, in whole or in part, to create a competitive offering; (d) charge a fee to any party for access to or use of the Software; (e) use the Software in a manner inconsistent with the License Documents. 5.2 Further Restrictions. Licensee will not disclose results of any benchmark or other performance, evaluation, or test run on or related to the Software. Licensee acknowledges that the Software is not fault -tolerant and not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance and consequently will not use the Software for (a) the on-line control of aircraft, air traffic, aircraft navigation, or aircraft communications; (b) in the design, construction, operation or maintenance of any nuclear facility; (c) medical or surgical applications; or (d) any other application in which failure could cause personal injury or death. Except as expressly permitted under applicable law, Licensee will not modify, adapt, translate, reverse engineer, decompile, disassemble, decrypt, port, emulate the functionality, reverse compile, reverse assemble, or otherwise reduce or attempt to discover any source code or underlying structures, ideas, or algorithms of the Software or any confidential information or trade secret. 5.3 Derivative Works / Improvements. Licensee is prohibited from using the Software to create any change, translation, adaptation, arrangement, addition, modification, extension, upgrade, update, improvement, (including patentable improvements), new version, or other derivative work of or to the Software. Notwithstanding the foregoing, if any of the Software is provided to the Licensee in source code format (or any other format that can be modified), the Licensee may modify such portion of the Software for the sole purpose of using the Software in accordance with this EULA and OT will solely own all modified portions and Licensee will irrevocably assign to OT in perpetuity all worldwide intellectual property and any other proprietary rights in and to any modifications of the Software. 5.4 Interfacing and Interactive Software. Licensee may not permit any software products not licensed by OT to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by OT. 6.0 Ordering Software Licenses 6.1 Direct Orders. If Licensee orders Software directly from OT, the Software must be identified on a Transaction Document acceptable to OT. 6.2 Orders through an OT Reseller. Software Licenses ordered through a Reseller are governed by the license grant set out in this EULA and the License Model description set out in the License Model Schedule. The License Model will be stated in an order document between Licensee and Reseller. If Reseller does not notify Licensee of the correct License Model, then the License Model for which OT has been paid License Fees will apply. 6.3 Risk of Loss and Shipping Terms. The Software is deemed delivered on the earlier of (a) when it is made available by OT for electronic download, or (b) when OT delivers the Software on Physical Media. Title to the Physical Media and all risk of loss for the Physical Media will pass to Licensee when delivered by OT to the shipping dock of the OT shipping facility. 6.4 Invoicing and Payment. OT may invoice Licensee for Fees and Taxes upon delivery of Software and annually in advance for the applicable Support Services Term. All Fees and Taxes due to OT by Licensee are due and payable upon Licensee's receipt of an invoice from OT. Fees do not include Taxes which are the responsibility of Licensee. If OT is obligated to pay Taxes on behalf of Licensee, Licensee will reimburse OT in full promptly following receipt of OT's invoice. All Fees and Taxes due to OT under this EULA are payable in the currency specified in the Transaction Document. All Fees and Taxes due to OT which are not paid in full within 30 days following its due date will bear interest at a rate of 1.5% per month (18% per annum) or the maximum amount allowed by law, if less, on the unpaid portion until fully paid. This subsection does not apply if Software is purchased through an OT Reseller. 6.5 Over Usage. OT may invoice Licensee for Fees and Taxes payable by Licensee due to use of or authorization to access the Software in excess of the number or type of Software Licenses granted by OT. 6.6 Licensee Affiliate Orders. Licensee's Affiliates that order Software Licenses are bound by the terms and conditions of this EULA as if it were the Licensee. Licensee and its Affiliates are jointly and severally liable to OT for any breach of this EULA. EC America, Inc. Page 5 reformatted 03.01.2022 6.7 OT Affiliate Orders. OT Affiliates may fulfill orders pursuant to a Transaction Document in which case the OT Affiliate is bound by all of the terms and conditions of this EULA as if it were OT. 7.0 OT Support and Maintenance. 7.1 OT Support and Maintenance Program. All Support Software and Support Services provided to Licensee are governed by this EULA and the then -current version of the applicable Support Handbook. 7.2 Support Services Exclusions. OT shall have no responsibility to provide Support Services to Licensee with respect to any problem with the Software caused by: (a) any software, device, or other product not supplied by OT; (b) neglect, misuse, alteration, or modification, to the Software other than by OT; (c) use of the Software for a purpose other than the purpose for which it was designed; (d) use of the Software on a computer platform other than the platform authorized by OT (which may be specified in the Documentation accompanying the Software); or (e) failure of Licensee to install any Support Software provided by OT. 8.0 Audits and Noncompliance. 8.1 Audit. During the term of this EULA and for 24 months after, Licensee will maintain electronic and other records sufficient for OT to confirm that Licensee has complied with this EULA. Licensee will promptly and accurately complete and return (within 30 days of OT request) any self -audit questionnaires, along with a certification by an authorized representative of Licensee confirming that Licensee's responses to the questionnaire accurately and fully reflect Licensee's usage of the Software. Furthermore, OT may once per year audit Licensee's records and computer systems (including servers, databases, and all other applicable software and hardware) to ensure Licensee has complied with this EULA. Licensee shall cooperate with OT's audit team and promptly and accurately respond to, database queries, location information, system reports, and other reports requested by OT and provide a certification by an authorized representative of Licensee confirming that information provided by Licensee accurately reflects Licensee's usage of the Software 8.2 Conduct. Audits will be conducted during regular business hours and will not interfere unreasonably with Licensee's business. OT will provide Licensee prior notice of each audit. Such audit shall be scheduled as soon as reasonably possible but in no event more than 7 days subsequent to the notice. Licensee will allow OT to make copies of relevant Licensee records. OT will comply with all applicable data protection regulations. 8.3 Noncompliance. If Licensee is not in compliance with the Software Licenses, Licensee will be deemed to have acquired additional Software Licenses at OT's then -current list price to bring Licensee into compliance, and Licensee must immediately pay (a) the applicable License Fees and Taxes, and (b) Maintenance Fees for: (i) the period Licensee was not in compliance with the Software License; and (ii) the first year Maintenance Fees on any additional Software Licenses. If Licensee has failed to comply with the License Documents, Licensee will reimburse all reasonable costs incurred by OT in performing the audit. Compliance with the License Documents is the sole responsibility of Licensee. 9.0 Limited Warranties 9.1 Limited Warranty. OT warrants to Licensee that: (a) Software will be free of all known viruses at the time of first delivery; and (b) Software will perform substantially in accordance with its accompanying Documentation for 60 days from the date of first delivery; and (c) Support Services will be delivered with reasonable skill and care. OT's entire liability, and Licensee's sole remedy, for each breach by OT of the warranty in: (i) clause (a) is limited to requiring OT to deliver a replacement copy of the Software to Licensee free of known viruses; and (ii) clause (b) is limited to requiring OT to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable time, failing which, in the case of the initially -delivered Software, OT will refund all License Fees attributable to the portion of the Software giving rise to the breach; and (iii) clause (c) is for OT to re -perform the applicable Support Services. 9.2 Warranty Exclusions. The warranties do not apply to any breach caused by: (a) any change to the Software, except where the changes were made by OT through Support Software; (b) Licensee's failure to provide a suitable installation or operating environment for the Software; (c) use of the Software on or caused by software, firmware, computer systems, data, technology or a hardware platform not approved by OT in writing; (d) any telecommunications medium used by Licensee; (e) failure of Licensee or user to comply with the Documentation; or (f) failure of Licensee to report a warranty claim within the warranty period. OT does not warrant that the Software is error -free or will operate without interruption. 9.3. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION, OT AND OT'S LICENSORS MAKE NO REPRESENTATIONS AND DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES AND CONDITIONS, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT, OR THE ADEQUACY OF THE SOFTWARE TO PRODUCE A PARTICULAR RESULT. 9.4 Inability to Exclude Warranties. If a jurisdiction applicable to this EULA restricts the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential, or special damages: (a) each warranty which cannot be excluded is limited in time to 60 days from the date of first delivery of the Software; and (b) OT's total liability to Licensee for breach of all such warranties are limited to the amount stated in the Limitation of Liability section. 10.0 OT Infringement Indemnity 10.1 Infringement Claims. OT will defend Licensee from any Claim, to the extent the Claim arises solely as a result of Licensee's use of the Software in accordance with the License Documents. This defense will not apply to a Claim to the extent caused by: (a) Licensee's failure to incorporate a Software update or upgrade that would have avoided the alleged infringement; (b) the modification of the Software by any party other than OT; (c) the combination or use of the Software with software, hardware, firmware, data, or technology not licensed to Licensee by OT or approved by OT in writing; or (d) unlicensed activities of the Licensee. As to any such cause, OT assumes no liability for infringement and Licensee will hold OT harmless against any infringement claims arising therefrom. 10.2 Exclusions. OT's obligations in this section are conditioned upon: (a) Licensee notifying OT in writing within 10 days of Licensee becoming aware of a Claim; (b) Licensee not making an admission against OT's interests unless made pursuant to a judicial request or EC America, Inc. Page 6 reformatted 03.01.2022 order; (c) Licensee not agreeing to any settlement of any Claim without the prior written consent of OT; and (d) Licensee, at the request of OT, providing all reasonable assistance to OT in connection with the defense, litigation, and settlement by OT of the Claim; and (e) OT having sole control over the selection and retainer of legal counsel, and over the litigation or the settlement of each Claim. OT will indemnify Licensee from any judgment finally awarded or any final settlement in connection with any Claims, provided all the conditions of this section are satisfied. 10.3 Licensee's Continued Use. If the Software becomes the subject of a Claim, OT will, in its absolute discretion, either (a) obtain a license for Licensee to continue using the Software, (b) replace or modify the Software without unreasonable degradation in functionality or (c) terminate the Software License to the infringing portion of the Software and refund the unamortized portion of the License Fees received by OT and attributable to the infringing portion of the Software, based on a 3 year straight line amortization. OT's entire liability and Licensee's sole and exclusive remedy with respect to any Claims are limited to the remedies set out in the OT Infringement Indemnity section. 11.0 Limitation of Liability 11.1 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANY BREACH BY OT (INCLUDING FUNDAMENTAL BREACH) OR TERMINATION OF THIS EULA, OT IS NOT LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST OR CORRUPTED DATA, OR REPROCUREMENT AMOUNT. 11.2 LIMITATION OF LIABILITY. OT'S AGGREGATE LIABILITY TO LICENSEE WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO OT UNDER THE RELEVANT TRANSACTION DOCUMENT. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS EULA WITHOUT THIS SECTION. 11.3 DISCLAIMER. THE LIMITATIONS IN THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF OT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF LICENSEE'S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE. IF THE APPLICATION OF THIS SECTION IS LIMITED BY LAW, OT'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. 12.0 Termination 12.1 Termination for Default. Either party may terminate this EULA if the other party: (a) becomes insolvent; or (b) has a receiver or receiver manager appointed with respect to it or any of its assets. Without prejudice to each right or remedy of a non -breaching party, either party may terminate this EULA for material breach by written notice, effective 10 days after notice unless the other party first cures the breach. 12.2 Effect of Termination or Expiration. Upon any termination of this EULA, or license granted pursuant to this EULA, or upon expiration of a term license: (a) all Software Licenses will immediately terminate; (b) Licensee will immediately cease all use of the Software; and (c) Licensee must either deliver to OT or destroy all copies of Software, Documentation, and OT confidential information in Licensee's possession or control. Within 15 days after termination, an authorized representative of Licensee must certify in writing that all copies have been delivered to OT or destroyed. Any terms in this EULA which by their nature extend beyond termination or expiration of this EULA will remain in effect until fulfilled. 12.3 Termination or suspension of Support Services. Without limiting OT's rights under clause 12.1, OT may, in its sole discretion, terminate or suspend Support Services if Licensee fails to remedy a material breach within thirty (30) days of notice by OT, including failure to pay an invoice. 13.0 Miscellaneous 13.1 Confidentiality. Each party (a "Disclosing Party") may disclose to the other party (a "Receiving Party") any Confidential Information. Each party agrees, for the period of this EULA and for three (3) years after such period, to hold the other party's Confidential Information in strict confidence, not to disclose such Confidential Information to third parties (other than to Affiliates and to professional advisers who are bound by appropriate obligations of confidentiality) unless authorized to do so by the Disclosing Party, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take reasonable steps to protect the other party's Confidential Information to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this section. The foregoing prohibition on disclosure of Confidential Information shall not apply to any information that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party's lawful possession without confidentiality obligation prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; or (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party by employees or agents without access to the Disclosing Party's Confidential Information (e) is required to be disclosed by the Receiving Party as a matter of law or by order of a court or by a regulatory body, provided that the Receiving Party promptly notifies the Disclosing Party (where lawfully permitted to do so) so that Disclosing Party may intervene to contest such disclosure requirement and/or seek an appropriate protective order or waive compliance with this section. . 13.2 Automated Verification. The Software may contain or require a license key to prevent unauthorized installation or to enforce limits of the Software License, and may contain devices or functionality to monitor Licensee's compliance with this EULA. 13.3 Developer Tools. OT is not responsible or liable for Licensee's development or use of additional software code or software products ("Licensee Software") using software developer tools licensed by OT and Licensee will defend and indemnify OT against any claims, damages, costs, losses or expenses related to the development or use of the Licensee Software. 13.4 Independent Contractors. OT and Licensee are independent contractors. Neither party has any authority to bind the other in any manner. 13.5 Waiver, Amendment, Assignment. Any amendment of this EULA must be in writing and signed by both parties. Licensee may not assign, transfer, or sublicense any portion of its interests, rights, or obligations under this EULA by written agreement, merger, EC America, Inc. Page 7 reformatted 03.01.2022 consolidation, change of control, operation of law, or otherwise, without the prior written consent of OT. Neither party will be deemed to have waived any of its rights under this EULA by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver of a breach of this EULA will constitute a waiver of any prior or subsequent breach of this EULA. An assignment in contravention of this subsection will be null and void. Except to the extent identified in this subsection, this EULA will be binding upon and inure to the benefit of the respective successors and assigns of the parties. 13.6 Governing Law. This EULA is governed by the laws of the State of Delaware, excluding (a) its conflicts or choice of law rules, and (b) the United Nations Convention on Contracts for the International Sale of Goods. Except for a request by OT for injunctive or other equitable relief, any dispute arising out of this EULA will be subject to the exclusive jurisdiction of the courts located in the State of Delaware. The prevailing party in any litigation related to this EULA will be entitled to its reasonable attorneys' fees and court costs. 13.7 Force Majeure. Except for payment and confidentiality obligations, or protection of intellectual property, neither party is responsible for any delay or failure in performance of this EULA to the extent due to causes beyond its reasonable control. 13.8 Severability. If any provision of this EULA is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from this EULA and all remaining provisions will continue in full force. 13.9 Export Laws. The Software, including Documentation, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee will comply strictly with all regulations and has the responsibility to obtain any licenses required to export, re-export, or import Software or Documentation. 13.10 Press Release. With Licensee's prior approval, OT may refer to Licensee's relationship with OT in a public press release or marketing materials. 13.11 Attribution Notices. Licensee will not remove, modify, obscure, resize, or relocate any ownership, attribution, or branding notices from the Software. 13.12 Resale of Third Party Software. The use of any Third Party Software resold by OT to the Licensee will be governed by a license agreement between the Third Party Software owner and the Licensee. OT does not provide any warranties related to the Third Party Software. OT has no liability or obligation to the Licensee related to the Third Party Software. 13.13 US Government End Users -Restricted Rights Legend. If the Software is being licensed directly or indirectly on behalf of the United States government, the following applies. For civilian agencies and departments: the Software was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software -Restricted Rights clause of FAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense, the Software is "commercial computer software" and "commercial computer software documentation" under the Rights in Computer Software and Computer Software Documentation clause of DFAR 227.7202-3 (a) and its successors, and all use, duplication or disclosure is subject to the license and restrictions set forth in this EULA. 13.14 Entire License Agreement. The License Documents set forth the entire agreement between the parties with respect to this subject matter, and supersede all other related oral and written agreements and communications between the parties. Neither party has relied upon such other agreements or communications. Any purchase order terms which purport to amend or modify terms of the License Documents, or which conflict with the License Documents are void and shall have no legal effect notwithstanding the fact the purchase order terms being later in time or OT issuing an invoice to Licensee after receiving such purchase order from Licensee. 13.15 Transaction Documents and Order of Priority. OT and Licensee may agree in a Transaction Document to special provisions which amend or vary a party's rights or obligations under this EULA (including any addenda), the License Model Schedule, Documentation, the document entitled Third Party Notifications available at www.opentext.com/agreements or any other documents provided by OT setting out permitted uses of the Software. In the event of an inconsistency between: (i) special provisions agreed in a Transaction Document, (ii) this EULA (including any addenda), (iii) the License Model Schedule, Documentation, the document entitled Third Party Notifications available at www.opentext.com/agreements or any other documents provided by OT setting out permitted uses of the Software, the documents shall be interpreted in that order to the extent of the inconsistency. 13.16 Third Party Rights. This EULA does not confer a benefit on, and is not enforceable by, any person or entity who is not a party to this EULA. 13.17 Legal Review and Interpretation. Both parties have had an opportunity for legal review of the License Documents. The parties agree that the License Documents result from negotiation between the parties. The License Documents will not be construed in favor of or against either party by reason of authorship. The headings used in this EULA are for convenience only. The term section refers to all subsections below a section heading (i.e. 3.0) and the term subsection refers to sequentially numbered subsections following a section (i.e. 3.1). 13.18 Notices. Any notice under this EULA that must be given by a party in writing is deemed effective when sent either: (a) via certified or registered mail, postage prepaid, or (b) via express mail or nationally recognized courier service to the other party's address specified in this EULA or on the most recent Transaction Document. Notices to OT will also be sent to OT's general counsel at 2950 South Delaware Street, San Mateo, California 94403 USA. 13.19 Hardware. IF HARDWARE IS IDENTIFIED ON A TRANSACTION DOCUMENT, THE SALE AND USE OF THE HARDWARE WILL BE GOVERNED BY TERMS OTHER THAN THIS EULA. OT DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO THE HARDWARE. EC America, Inc. Page 8 reformatted 03.01.2022 Open Text Inc. Name: Licensee: Name: Title: Title: Date: Date: Address: Address: EC America, Inc. Page 9 reformatted 03.01.2022 License Models November 2019 ENCASE LICENSE MODEL SCHEDULE Definitions: The following defined terms are used in connection with the Encase License Models: "Educational Institution" means a public or private university, college, or other post -secondary educational establishment that is the Licensee for the applicable Transaction Document. "Internal Network" means a private, proprietary computer network resource utilizing Supported Computers established and maintained by Licensee and accessible only by Licensee's employees and authorized contractors, excluding any portions of the Internet or any other network community open tothe public. "Node" means any Licensee computer/server which can be (i) connected to Licensee's Internal Network,and (ii) investigated using the Software. For any Encase software license subject to a Node -based licenserestriction, all the Nodes on Licensee's Internal Network must be licensed unless otherwise indicated on Licensee's Transaction Documents. In the event Licensee's Internal Network expands beyond the Node capacity indicated on the applicable Transaction Documents, additional Nodes must be licensed corresponding to such increase. "Supported Computers" means the computers owned or leased by Licensee, and under Licensee's control, of a manufacturer, model and operating system that is compatible with the current version ofthe Software as set forth in the release notes. "Transaction Documents" means the legally binding order documents applicable to a given Licensee's order. Encase Uncapped Component Licenses License Model. Per Node The Uncapped Component license model is applicable to the following software products: • Endpoint Investigator • Endpoint Security • Encase eDiscovery • Encase Risk Manager An Uncapped Component License includes an unlimited quantity of the following components that can be deployed on Licensee's Supported Computers solely for use in conjunction with the foregoing software products: • Examiners • SAFEs • Concurrent Connections • Snapshot • Enscript programs that ship with the Software Uncapped Component Licenses are licensed to Licensee for use only on the number of Nodes specifiedon the Transaction Documents on Licensee's Internal Network(s) only. Encase Forensic and Encase Mobile Investigator Licenses License Model. Per Copy (or instance). Each Encase Forensic and Encase Mobile Investigator license permits use of one copy of such software by a single individual on a single computer at a given point in time. No copies or duplicates of the donglehardware key may be made. The software may EC America, Inc. Page 10 reformatted 03.01.2022 not be used to provide technical training or instruction for monetary compensation or other consideration unless separately agreed to in writing by Open Text Corporation. Encase Forensic Site License License Model. Per Copy (or instance). Encase Forensic Site Licenses may be deployed on Licensee's Supported Computers either on premises owned or leased for use by Licensee or on external sites solely in connection with criminal investigations by Licensee on behalf of a law enforcement entity. Encase Academic License License Model. Per Copy (or instance). Encase Academic Licenses may be used solely by an Educational Institution in a classroom environmentlocated at the Education Institution solely for the purpose of teaching computer forensics or related subject matters. Encase for External Investigations License Model. Per Copy (or instance). Encase for External Investigations Licenses may be used by Licensee solely to collect and analyze data located on third -party (i.e. non -Licensee) computers and computer networks directly related to Licensee's investigations of such computer networks. Such software must be removed from the external third -party computers and computer networks upon completion of the applicable investigation. Encase for Service Providers and Consultants License License Model. Per Copy (or instance). The Encase Service Providers and Consultants License may be used by Licensee (i) on Licensee's own Internal Network to analyze data collected from Licensee's clients in connection with Licensee's consulting business, and (ii) to collect such data from Licensee's clients' computer networks. The software must be removed from Licensee's clients' computer networks upon completion of Licensee'sdata collection work on such networks and/or for such client(s), subject to the following paragraph. If Licensee has purchased Encase Endpoint Security for Service Provider use, upon Licensee's removal ofall Encase for Service Providers and Consultants software from Licensee's clients' computer networks, Licensee may leave servlets on such clients' computer networks for future use provided that Licensee removes all other components of the Software from the client's network and the client is unable to operate the Software upon completion of Licensee's consulting services engagement. Student Use License Model. Per Copy (or instance). Student licenses are restricted to personal, non-commercial use only as part of Licensee's participation as a student in a digital forensics training course. EC America, Inc. Page 11 reformatted 03.01.2022 1. Introduction Welcome to Open Text Corporation's OpenText (OT) Prime Protect Software Maintenance Program. This handbook provides you with information about the policies and processes designed with your support needs in mind. Please use this as a guide to help you get the most out of your investment in OT solutions. The OT Prime Protect Software Maintenance Program Handbook (the "Handbook") describes the OT Prime Protect Software Maintenance Program services offered for OT software licensed from OT and for which you have purchased the support services described herein. We also offer fee -based enhanced support programs that allow organizations to extend their support coverage depending on their business needs, and are available to any current subscriber of the OT Prime Protect Software Maintenance Program and may be described in section 5 of the Handbook. You can also refer to http://www.opentext.com/support to find more information, or contact your local OT customer support office for documentation on these additional programs. OpenText Prime Protect Software Maintenance Program Handbook English v2.0, Apr2020 Software Maintenance Program Handbook OT Prime Protect Program Edition EC America, Inc. Page 12 reformatted 03.01.2022 1.1 Definitions "Additional Program" refers to fee -based enhanced programs, which may be outlined in Section 5 herein. "Classification", "Classified" or "Classify" refers to the OT designated priority of the Support Request. "Covered Software" shall mean the licensed software for which maintenance services shall be provided under this Handbook including all documentation provided or made available. "Customer Service Portal" refers to the OT online access point for links to and information regarding OT customer support, available to OT Prime Protect customers. "Current Maintenance" — a defined period of time from the release date of the Covered Software which includes: • Unlimited number of Support Request submissions • Product Patches and/or Releases • The ability to request enhancements or new features and report Errors • Access to the Customer Service Portal (Documentation, technical articles, discussion forums, webinars and events) • Requires customer active software maintenance and annual renewal "Days" refers to business days, which are 5 days x 8 hours Monday through Friday, except for regional statutory holidays. "Documentation" refers to user guides, operating manuals, and release notes in effect as of the date of delivery of the applicable Covered Software, made generally available to OT's end users by OT. "Error" refers to any verifiable and reproducible failure of the Covered Software to perform substantiallyin accordance with its accompanying Documentation, as applicable, for such Covered Software. "Expiration" shall mean the ending of a Term whether occurring through termination or cancellation "Initial Term" refers to the twelve months beginning on the Start Date. "OT" refers to Open Text Corporation and/or its subsidiaries/affiliates offering the maintenance and support services as described in this OT Prime Protect Software Maintenance Program Handbook, as applicable. EC America, Inc. Page 13 reformatted 03.01.2022 "Product Patch" refers to an additional software program to correct an Error of the Covered Software "Points of Contact" or "POC" refers to one or more of your designated employees who are authorized to contact the OT support team. "Production Mode" refers to the use of the Covered Software as intended by its accompanying Documentation, by your users as part of business or service operations. Production Mode does notinclude development, quality assurance, demonstration, testing, staging or training environments. "Release" refers to the finalized and released software. "Resolution" refers to taking the necessary action to correct an Error such that the Covered Software is operating in accordance with the Documentation. This could include, but is not limited to, creating a new or applying an existing Workaround (provided that OT will pursue a permanent fix, if commercially reasonable), or Update. "Response Time" refers to the amount of time that is measured from the time a Support Request is received by OT until the time when a technically qualified member of OT responds to you for the purpose of commencing the work necessary to achieve Resolution of the Support Request. The response time foran SR is determined by its Classification, the OT support program(s) the customer subscribes to, and the time when the SR was submitted to OT during a business day. "Start Date" refers to the initial date for the commencement of customer's OT Prime Protect Software Maintenance Program which is on the date the Covered Software is initially shipped or otherwise made available from OT to you. "Subsequent Term" refers to the 12-month term commencing on the first anniversary of the Start Dateand each subsequent 12-month term commencing on an anniversary of the Start Date. "Support Request" or "SR" refers to the initiation of a record or "ticket" documenting the details of the service request or incident. "Support Services" refers to the following activities: an initiation of a Support Request, OT's response to the Support Request, and a Resolution of the Support Request. "Sustaining Maintenance" refers to the stage of the product lifecycle following the expiration of Current Maintenance. During this phase of the product support lifecycle, the following Support Services may be available': • Unlimited number of Support Request submissions OT will use commercially reasonable endeavors EC America, Inc. Page 14 reformatted 03.01.2022 to respond to and provide a Resolution of an SR • Access to the Customer Service Portal (Documentation, technical articles, discussion forums, webinars and events) *The terms and length of phases of the product support lifecycle may vary depending on the product and Release. Please refer to the Customer Service Portal product page for specific lifecycle terms. "Term" refers to either the Initial Term or a Subsequent Term. "Update" shall mean any Product Patch or Release of the Covered Software, which will be provided byOT to the customer in accordance with this Handbook. "we" or "our" refers to OT. "Workaround" is a manner of addressing an Error by bypassing the problem in the system (software technical bypass). A Workaround is typically a temporary fix and OT may subsequently correct the Error in the Covered Software and / or the programs through an Update. "you", "your" or "customer" mean the entity that licensed the Covered Software from OT and ispurchasing OT Prime Protect Software Maintenance Program services. 2. Support Services 2.1 General 2.1.1 Hours and OT Support Services Location Information Support Services are available 7x24 for critical and serious support requests (as defined in section 2.3.2 of this SMPH). For normal Support Requests, Support Services are available 5x8 *Monday through Friday, except for regional statutory holidays. Support Services hours are based on the country where the Covered Software is installed. Hours, support locations and additional contact information for the OT Prime Protect Software Maintenance Program are publicly available and maintained at our corporate website at http://www.opentext.com/support/contact/opentext. Support Services are delivered from a support location in the same region as the Covered Software is installed or from an alternate support location as determined by OT. Where an alternative support location is used by OT, regional statutory holidays for such alternative support location shall not impact the Support Services hours for customer. EC America, Inc. Page 15 reformatted 03.01.2022 Communication relating to an SR will be made in English, unless, at OT's discretion, the support center responsible for processing is able to offer communication in another language as a convenience to the customer. OT may not be able to provide any information in a language other than English in the event an SR is transferred to a different support center. *For customers in the Middle East, Support Services are available 8 hours a day, 5 days a week, Sunday through Thursday, except for regional statutory holidays, for normal Support Requests. 2.1.2 Point(s) of Contact Support Services are provided to your Point of Contact (POC). The POCs must have knowledge of, and the administrator permissions for, the Covered Software sufficient to provide OT customer support with the information and undertake actions required to achieve a resolution of the SR as described below. POCs are generally the administrators and other members of your technical staff. A unique support renewal contract for the Covered Software will be assigned to each software maintenance and support order you place with OT. You may designate up to six POCs for each supportrenewal contract. The POCs may only contact OT customer support in accordance with section 2.1.1. 2.1.3 Software Updates Releases to Covered Software will be made available to you as part of the OT Prime Protect Software Maintenance Program at no additional charge if and when such Releases are generally released to all OT Prime Protect Software Maintenance Program subscribers. To receive such Releases, the OT Prime Protect Software Maintenance Program must be subscribed to at time of Release and request. Subscribers are notified about new Releases in regular information bulletins and via the Customer Service Portal. You are encouraged to run the most recent Release of the Covered Software. In most instances, OT will support each Release of the Covered Software for a period of sixty(60) months after the Release is generally made available to OT's customers (Current Maintenance). The terms and length of phases of the product support Iifecycle may vary depending on the Covered Software and Release. Please refer to the Customer Service Portal product page for specific Iifecycle terms. After the expiration of the Current Maintenance term, the Covered Software enters the Sustaining Maintenance phase of the product Iifecycle. When Covered Software is considered to be in Sustaining Maintenance, no new Product Patches and Releases are released for general use. Migration to a Current Maintenance Release may be required in order to address an issue. If you are unable to update to a subsequent Release under Current Maintenance, OT may offer extended supportand maintenance options at an additional cost. Please contact your Renewals Specialist or local OT customer support office for more information. EC America, Inc. Page 16 reformatted 03.01.2022 22 Initiation of a Support Request Support Services are provided under the OT Prime Protect Software Maintenance Program to address incidents reported by subscribers associated with performance or usage issues. Performance and usage issues are situations where the Covered Software is not performing substantially in accordance with the accompanying user Documentation. Generally speaking, performance and usage issues may be caused by: 1) software Error or defect (related to the design, coding or architecture of the Covered Software), 2) usage or configuration Error (related to usage of the Covered Software or the installation, configuration or setup of the Covered Software), or 3) environmental Error (related to the subscriber's network, hardware and operating systems). SRs for Support Services to address any issues should be initiated by a POC using the Customer Service Portal located at https://knowledge.opentext.com/qo/Customer Care. These customer self- service tools will automatically initiate an SR and send you an associated tracking number. You are encouraged to: Provide OT customer support with the information it reasonably needs to Classify and log the SR (see 2.3.2). • Wherever possible, use the SR number for each communication with OT customer support. 2.3 OT Response to a Support Request 2.3.1 Support Request Dispatch Support Requests will be dispatched as follows: a. If the SR involves OT Covered Software, then a SR will be forwarded to OT customer support for Classification and Resolution (described below). b. If the source of the SR is unclear, the ticket will be forwarded to OT customer support for further investigation and, once the source of the SR is determined, it will be dispatched as described above in section 2.3.1 (a) . c. If the source of the SR is your hardware, operating system, database, web server, browser software or other non-OT application, OT may, where possible, attempt to provide a Workaround (described below) and/or may, where possible, report the problem to the appropriate vendor for Resolution. If the SR involves a product that is developed by a third party, the SR may be referred to that third party. d. Any software and/or hardware provided by and installed by OT (as agreed by you) to assist with the delivery of the Support Services that is not purchased by you must be removed and returned to OT upon termination of the program or related delivery component. EC America, Inc. Page 17 reformatted 03.01.2022 2.3.2 Support Request Classification and Response Times Escalation: You may request an escalation at any time through the Customer Service Portal or phone. Please see Section 3.0 for limitations to the OT Prime Protect Software Maintenance Program EC America, Inc. Page 18 reformatted 03.01.2022 2A Resolution of Support Request OT customer support shall attempt to address each SR, regardless of Classification, through the offering of technical advice, by locating an existing Workaround or by creating a new Workaround using the process described below in this Section 2.4. In the event of an outage, and depending on the cause and duration of the outage, OT may require the customer to restore from backup in order to return the system to a production state. Once production service is restored, the SR Classification is downgraded and root cause analysis may continue, as requested, during regular regional support hours of operation. If a Product Patch is provided to you to resolve an SR, distribution of the Product Patch will be carried out through the next scheduled Release. 2.4.1 Resolution of Critical SR's For SR's Classified by OT as critical which have been caused by defects in the Covered Software, if the technical advice provided by OT customer support has not resolved the SR, and if no Workaround can be found or created to resolve the SR, OT customer support will use commercially reasonable efforts to develop a Product Patch to address the SR and provide it to you. 2.4.2 Resolution of Serious SR's For SR's Classified by OT as serious, OT may develop a Product Patch or may address this in a future Release. 2.43 Resolution of Normal SR's Resolution of SR's Classified as normal may be included in a future Release. EC America, Inc. Page 19 reformatted 03.01.2022 2.4A Conditions of a Support Request Resolution OT customer support shall attempt to address each SR, regardless of Classification; OT will have no obligation to provide a Resolution for your SR as described above unless: • You are running a Release of the Covered Software which is under Current Maintenance and you have installed and implemented all of the most recently available relevant Updates, or you do so at the request of OT customer support. OT customer support will make that request if it reasonably believes that the installation and implementation is necessary to achieve Resolution of your SR; AND, • You are using the Covered Software on hardware and with third party software approved by OT or as specified in the Documentation; AND, • The SR has, as determined by OT, not been caused by you, including, but not limited to your use and/or configuration of: (a) development tools, including SDK; (b) a third party resource; and (c) the operating environment in which the Covered Software is implemented, including, among other things, the operating system, database, other applications, services, or programs, communication networks, or hardware; AND, • Your POC is available to actively participate with OT on diagnosis, testing, and Resolution. OT reserves the right to suspend its obligations under this Handbook during any time(s) in which a competent POC is unavailable for such participation; AND, • You have provided OT with all of the information necessary to allow OT to reproduce the SR 3. Limitations The following limitations apply to the OT Prime Protect Software Maintenance Program: • The OT Prime Protect Software Maintenance Program as described in this Handbook only applies to the Covered Software as is described in the OT Documentation, and does not apply to any modifications, deliverables, or services provided by OT's professional services staff or by third party resources which results in the alteration or extension of the Covered Software. Customer may engage OT's professional services for fee -based assistance under separate agreement. OT reserves the right to modify any portion of this Handbook at its sole discretion and without prior notice; however, you will be notified of any such modifications (if such modifications result in a material reduction of service) in a timely manner by way of email, written notice or a posting on the Customer Service Portal. EC America, Inc. Page 20 reformatted 03.01.2022 • Nothing in this Handbook purports to exclude, restrict or modify, any condition, warranty or guarantee implied by applicable law ("Implied Terms") where to do so would have the effect of rendering all or any part of this Handbook void or otherwise unenforceable. To the maximum extent permitted by applicable law, OT's liability for breach of any Implied Terms is limited to the resupply of the OT Prime Protect Software Maintenance services. • OT's obligation to address SR's and/or performance issues shall be strictly limited to those obligations described in this Handbook • The OT Prime Protect Software Maintenance Program does not provide for dedicated assistance with issues encountered as a result of implementing major changes to the technical architecture of the Covered Software (for example, Updates to the application, underlying database, addition of new hardware, etc.). OT offers: (1) remote or onsite assistance from an OT Customer Support representative who is assigned to your organization for the duration of a maintenance activity or SR to observe, participate in conference calls or web sessions, or provide assistance with your maintenance activities ("Dedicated Support"); and (2) an assigned support representative with expertise in your planned maintenance activity that will be on call only in the event you need assistance ("Standby Support"). Dedicated Support or Standby Support are fee -based services that must be pre -arranged for these types of activities. Please contact your local OT customer support office for more information. • OT Prime Protect Software Development Kit (SDK) Support will provide assistance with SRs relating only to: (a) the installation (b) the configuration of an OT developer application (for example, Integrated Development Environment ("IDE")) or related software required to establish a suitable development or programming environment that is consistent with those environments or applications which have been supported; and (c) the analysis of error messages related to the OT developer application. SDK support for debugging code, assistance with writing coding, code reviews, or any general programming assistance is not included as part of the OT Prime Protect Software Maintenance Program, but can be provided through separate agreement at an additional charge. • The provision of license keys is excluded from the Response Times described in Section 2.3.2 of this OT Prime Protect Software Maintenance Program. Additionally, license keys from third party vendors are requested of the third party vendor, and provided by the third party vendor to either OT or the Customer as determined by OT. • The software lifecycle for third party products resold by OT is established by third party vendors only. Third party software is excluded from Section 2.1.3 . • OT is not responsible for providing Support Services for third party products resold by OT to the extent that addressing SRs is dependent on unresolved issues with third party products including, but not limited to, unavailability of third party support. • All licenses must be supported under the same software maintenance program (e.g., Prime Protect). EC America, Inc. Page 21 reformatted 03.01.2022 4. Term and Renewal 4,1 Initial Term and Renewal The Initial Term for OT Prime Protect Software Maintenance Program is twelve months beginning on the Start Date. Unless either party provides 90 calendar days written notice prior to the expiration of the current term, the OT Prime Protect Software Maintenance Program will automatically renew for a Subsequent Term on an annual basis, commencing each anniversary of the Start Date. Before the commencement of a Term, you will be obligated to pay the applicable entire annual OT Prime Protect Software Maintenance Program fee with respect to the Covered Software which you have licensed from OT, failing which OT may suspend some or all of the OT Prime Protect Software Maintenance Program services until payment has been received. Such suspension shall not relieve you from your obligation to pay the applicable OT Prime Protect Software Maintenance Program fee. OT may increase the annual fee for Subsequent Terms of software maintenance by no more than 10% of the price of the previous Term. All fees paid for the OT Prime Protect Software Maintenance Program are non-refundable. 42 Reductions All requests to renew OT Prime Protect Software Maintenance Program on a fewer number of licenses or modules for Covered Software than is currently covered under maintenance and support must be submitted in writing to OT no less than 90 calendar days prior to the expiration of the then -current Term. Acceptance of any requests to align fees for the remaining software is at OT's sole discretion. If OT accepts such a request, OT shall only provide Updates and software support for the number and type of licenses included in your then remaining Covered Software being renewed under maintenance and support. The maintenance charges for the remaining Covered Software shall be re -priced. In such an event, the fees applied to each license may differ from any earlier Terms (for example, previously granted fee discounts are not applicable). 4.3 Lapse and Reinstatement If you terminate or cancel, as applicable, a Term of the OT Prime Protect Software Maintenance Program for the Covered Software, you may, upon agreement by OT, subsequently purchase OT Prime Protect Software Maintenance Program services for said Covered Software for a fee to be determined by OT at time of request. However, in addition to the fee for the new Term, which shall be a minimum of 12 months, you will need to pay the fees that would have been payable had you continued the OT Prime Protect Software Maintenance Program uninterrupted. The fees charged to re -instate the OT Prime Protect Software Maintenance Program are subject to a surcharge for each lapsed month, including the month of reinstatement. EC America, Inc. Page 22 reformatted 03.01.2022 Future reinstatement of software removed as a part of a reduction as described in Section 4.2 is subject to payment of back -maintenance fees and lapsed month surcharges. OT will confirm fees for reinstatement at the time the request is made for reinstatement. 4A Expiration Upon Expiration of the Term of an OT Software Maintenance Program, you acknowledge and agree that any and all agreements between you and Open Text related to the OT Software Maintenance Program shall automatically terminate, irrespective of whether these agreements were documented in this Handbook or a EULA or any other document. Should you at any point in time after Expiration choose to subscribe again to an OT Software Maintenance Program, you will do so under the then -current OT Software Maintenance Program commercial and support services delivery terms, and OT shall not be obligated to comply with, any agreements that were entered into prior to the Expiration date related to such OT Software Maintenance Program. 5. Additional Programs Additional Programs are fee -based enhanced support programs that allow organizations to extend their support coverage depending on their business needs, and are available to any current subscriber of the OT Prime Protect Software Maintenance Program. 5.1 Additional POCs Additional POCs is a subscription -based option to extend the number of your designated employees who are authorized to contact OT customer support and open SR's. If you elect to purchase this option: • Fees for Additional POCs are annual The Additional POC period shall be for 12 months unless otherwise agreed by OT and the customer in writing. The terms in this Handbook shall apply to the program deliverables defined herein for the Additional POCs. 5.2 Onsite Assistance Onsite support is available as a fee -based service for OT products and solutions. This service may include, but is not limited to, Workarounds or assistance with configuration changes as part of the Resolution of an open SR. EC America, Inc. Page 23 reformatted 03.01.2022 6. Privacy OT will comply with the requirements of data protection law applicable to it for the processing of personal data. We have implemented technical and organizational measures to protect your personal data and ensure a level of security appropriate to the risk. Customers' personal data shall not be used by OT, its affiliates or its business partners, vendors and agents working on our behalf for any other purpose other than as required under this Handbook, the underlying contract and permitted or required by law. If OT requires access to personal data to provide Support Services, Customer will provide personal data to OTonly to the extent reasonably required. Personal data may be processed in other countries. The transfer to other countries shall be in accordance with applicable data protection legislation which may include an adequacy decision by applicable regulators (including Privacy Shield certification) or appropriate safeguards. Appropriate safeguards may include OT and third parties entering into the EU standard contractual clauses for thetransfer of personal data. For more information, please refer to the OT privacy policy available at https://www.opentext.com/about/copyright- information/site-privacy. www.op entext.com /cont act Copyright © 2020 Open Text. All rights reserved. Trademarks owned by Open Text.