Order Form - Zenoss Core Support

BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE ON BEHALF OF THE ENTITY ("CUSTOMER") THAT IS PURCHASING THE SUPPORT THAT: (1) THE FOLLOWING TERMS AND CONDITIONS ("AGREEMENT") GOVERN THE CUSTOMER'S SUBSCRIPTION AND FORM A LEGAL AGREEMENT BETWEEN THE CUSTOMER AND ZENOSS, INC. ("ZENOSS" or "US") REGARDING OUR SUPPORT; AND, (2) THAT YOU HAVE AUTHORITY TO BIND THE CUSTOMER. PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY.

1. License Grant, Support/Fees. The Zenoss Core Software is made available to Customer pursuant to version 2 of the GNU General Public License (the "GPL"). Subject to the terms and conditions of this Agreement, during the term of this Agreement Zenoss will provide Support to Customer and Customer agrees to use or apply that Support solely in connection with managing the Authorized Number of Managed Resources in the course of its internal business operations. Support purchased by Customer shall be provided by Zenoss in accordance with terms as detailed on the Order Form which terms may changed from time to time at the sole discretion of Zenoss.

1.1 Fees. In exchange for the Support, Customer must timely pay to Zenoss those fees described in the Order Form ("Fees") on the terms set forth in the Order Form. Payment shall be made without any right of set-off or deduction, and Fees are non-refundable. Without limiting any other remedies, Zenoss may elect to discontinue Support if timely payment is not received. All fees and other prices are exclusive of local, state, federal and international sales, value added, excise and other taxes and duties of any kind. Customer shall be responsible for payment of taxes and duties of any kind payable with respect to the purchase of Support arising out of or in connection with this Agreement, other than taxes levied or imposed based upon Zenoss's net income. Please remit payments to: Zenoss, Inc. 275 West Street, Suite 204 , Annapolis , MD 21401 , Attn: Accounts Receivable.

2. Term and Termination. This Agreement shall commence on the Effective Date and continue for a one year period unless terminated earlier as set forth below. Thereafter, this Agreement shall renew for successive one-year renewal terms, at the then current subscription fee, unless either party provides notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Zenoss may terminate this Agreement immediately in the event Customer: (a) fails to pay an invoice when due, (b) uses Support in connection with Managed Resources in excess of the Authorized Number of Managed Resources or (c) commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach. Customer may terminate this Agreement in the event Zenoss commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach. In the event that either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other party shall have the right to immediately terminate this Agreement. Upon termination of this Agreement, Customer shall have no further right to receive or use Support under this Agreement. Sections 1.1, 3, 5, 7,8,9 and 10 of this Agreement shall survive the termination of this Agreement for any reason.

3. Proprietary Rights. The intellectual property and proprietary rights of whatever nature in the Software, the trademarks of Zenoss and related documentation, including derivative works, are and shall remain the exclusive property of Zenoss and/or its suppliers, and nothing in this Agreement should be construed as transferring any aspects of those rights to Customer or any third party. Zenoss and its suppliers reserve any and all rights not expressly granted in this Agreement and the GPL License. Zenoss and Zenoss Core are trademarks of Zenoss, and shall not be used by Customer without Zenoss' express authorization. Customer shall not, directly or indirectly remove or alter any copyright, trademark or proprietary notice in the software. During any term of this Agreement, Customer grants to Zenoss a non-transferable, non-exclusive license to reproduce and display Customer's logos, trademarks, trade names and similar identifying material so that Zenoss may refer to Customer as a user of the Software should Zenoss so desire, such as on the Zenoss website, in press releases and in other marketing materials. Customer acknowledges and agrees that certain Zenoss products contain features that report, or permit users to report, the user's usage patterns and problems to Zenoss. Notwithstanding any right Customer may have to do so under any license, Customer agrees not to modify the Software so that it slows, makes impossible or otherwise interferes with Zenoss' reporting and billing.

4. Customer Requirements. Customer shall be solely responsible for obtaining, installing, maintaining and paying for: (a) any designated third party software (including updated versions of designated third party software); (b) server and system capabilities necessary to meet the minimum hardware and software requirements for the Software as set forth in the product documentation for the Software; and (c) all Software upgrades, modifications and corrections made available by Zenoss. Customer agrees that all requests for Support must be made by and coordinated through a single point of contact (a "Support Point of Contact"). Customer Support Point of Contact must be properly trained in applications technical support and qualified to submit requests for Support to Zenoss. When contacting Zenoss, Customer Support Point of Contact must provide his or her name and phone number and Customer name, and provide a detailed description of the Error. Customer represents and warrants that Customer possesses server and system capabilities which meet or exceed the minimum hardware and software requirements for the Software as set forth in the product documentation accompanying the Software. Customer will provide Zenoss with all access, information, documentation and assistance that Zenoss may require to provide Support hereunder.

5. Managed Resources; Audit Rights. Customer represents and warrants to Zenoss that, as of the Effective Date and during the term of this Agreement Customer will use the Software to manage no more than the Authorized Number of Managed Resources. Customer may purchase Support for additional Managed Resources by contacting Zenoss. Customer shall maintain complete and accurate records of the number of Managed Resources being managed by the Software for three (3) years following the termination of this Agreement. Upon Zenoss' written request, Customer shall provide Zenoss with such records. If Customer has used the Software to manage more than the authorized number of Managed Resources, Customer shall immediately pay to Zenoss the applicable fee for each additional Managed Resource.

6. Support. Zenoss will be available to provide Support during Regular Business Hours via email. Zenoss will provide Support in accordance with the severity level of the Error as reasonably assigned by Zenoss. Notwithstanding anything contained in the GPL, Zenoss will not be required to provide support for third party modifications or customizations of the Software. Zenoss will provide support for each version of the Software provided hereunder for a period of up to one (1) year after the general availability of the subsequent version of the Software.

7. Disclaimer of Warranties. THE SOFTWARE AND SUPPORT ARE PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE SOFTWARE. ZENOSS AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND/OR ACCURACY OF INFORMATIONAL CONTENT. ZENOSS AND ITS SUPPLIERS DO NOT WARRANT THAT ANY ZENOSS SOFTWARE OR SUPPORT WILL MEET CUSTOMER REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.

8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL ZENOSS OR ITS SUPPLIERS HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT OR LOST SAVINGS (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, OR ANY OTHER CAUSE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE LIABILITY OF ZENOSS TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO ZENOSS BY CUSTOMER DURING THE PREVIOUS TWELVE MONTHS.

9. Export Law Assurances. Customer acknowledges that the Software may be subject to U.S. and/or Canadian export and import control laws, and agree to comply fully with those laws in connection with the Software. Customer agrees that the Software is not being, and will not be, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Customer hereby certifies that Customer is not prohibited by the U.S. government from participating in export or re-export transactions.

10. Confidentiality. During the term of this Agreement and for two years following its termination both parties agree to maintain the confidentiality of any confidential or proprietary information ("Confidential Information") received by the other party during or prior to entering into this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure. In protecting Confidential Information, a receiving party agrees to use the same care which it takes for its own confidential information and in no event less than reasonable care. Without limiting the generality of the foregoing, any and all Commercial Software and the financial and other terms and conditions of this Agreement shall be Confidential Information, and Customer represents and warrant to Zenoss that Customer are permitted to disclose to Zenoss any information which Customer so discloses. This section shall not apply to any publicly available or independently developed information.

11. Definitions. All terms that are used herein but not defined herein shall have the meaning given to such terms in the Agreement. The following terms shall have the following definitions:

• "Authorized Number of Managed Resources" means the authorized number of Managed Resources identified on the Order Form.

• "Core Software" means the Zenoss Core monitoring platform specifically identified on the Order Form, including all Upgrades to that platform.

• "Effective Date" means the date on which Zenoss transmits written, faxed or emailed acceptance of Customer's Support order placed on the Order Form.

• "Error" means any failure of the Zenoss Core Software or Zenoss Commercial Software to conform to or operate in accordance with the publicly available product documentation for such Software.

• "IP Address" means "Internet Protocol Address," which is a unique address used by Managed Resources to identify and communicate with each other on a computer network that uses the Internet Protocol (IP) standard."

• "Managed Resource" is any machine, component or virtual machine or component: (a) that has, or is capable of having, an IP Address, such as a computer, a time server, environmental control, power unit, switch, router, fax machine, URL, telephone or other network Managed Resource; and (b) is, or has been, monitored by the Software. Any single physical component or machine that is, or has been monitored by the Software, and is operating one or more virtual machines or components that have an IP Address, constitutes multiple Managed Resources, as determined by the number of IP Addresses assigned to that machine or component and its virtual machines and components at any one time. For example, a server that is running 4 virtual machines would constitute 5 Managed Resources in total (i.e., the server itself plus the 4 virtual machines).

• "Regular Business Hours" means 8:00 am - 6:00 pm Eastern Time, Monday through Friday, excepting U.S. national holidays.

• "Server" means a single machine that processes data using one or more CPU's, and which is owned, leased or otherwise under the control of Customer.

• "Software" means the unmodified, certified, commercially available Core Software.

• "Support" means analysis, troubleshooting and similar Support to diagnose and correct any Error reported by Customer in accordance with the terms of this Agreement.

• "System" means the Zenoss Server and its component(s) in use by the Customer.

• "Upgrades" means bug fixes, updates, and/or enhancements that are made generally available during the term of this Agreement and that Zenoss may provide to Customer as part of the Support.).

• "URL" means a single web application which is hosted by or on behalf of the Customer and delivers Support and/or information to users of the web application.

12. Miscellaneous. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law. Customer may not assign this Agreement or its rights or obligations under this Agreement to any person or party without Zenoss' prior consent. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. This Agreement shall be deemed to have been consented to in, and shall be governed by the laws of, the State of Maryland , U.S.A. , excluding its conflict of law provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act. In the event that either party initiates an action in connection with this Agreement or any other dispute between the parties (a "Dispute"), the exclusive jurisdiction of such Dispute shall be in a state court located in Anne Arundel County , Maryland , U.S.A. or a federal court located in Maryland , U.S.A. If Customer is located in a country that does not have a bilateral or multilateral ruling enforcement treaty with the U.S.A. , the Dispute shall be exclusively and finally resolved by arbitration conducted in Annapolis , Maryland , U.S.A. , in the English language by a sole arbitrator ("Arbitrator") in accordance with the International Arbitration Rules of the American Arbitration Association ("AAA"). Notwithstanding anything to the contrary in this Section Zenoss may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. Except as required by law, the controlling language of this Agreement is English, and any Dispute brought under this Agreement shall be conducted in the English language. In addition, if Customer is located in Quebec , Canada , the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes confirment qu'elles ont exigé quele présent contrat et tous les documents associés soient redigés en anglais. Notice required or permitted to be given or delivered under this Agreement shall be in writing and addressed and delivered to the other party's address set forth on the Order Form. The parties enter into this Agreement as, and shall remain, independent contractors with respect to one another. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party. This Agreement (including any and all attachments hereto) comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. This Agreement may be amended or modified only in a writing executed by both parties.