Support Services Plans

A.        Definitions
i.          Authorized Contacts:  The qualified individuals selected by Company and approved by Zmanda who are authorized to contact Zmanda for Support.  The number of Authorized Contacts for a particular Support Services Plan is as set forth below.
ii.          Back-End Support Services:  The services of identifying Errors and providing Maintenance Patch(es) to correct Errors identified and reported by an Authorized Contact. It does not include providing Front Line Support Services directly to Subscription Users.
iii.         Errors:  One or more reproducible deviations in the unmodified Software from the applicable specifications shown in the documentation accompanying such Software.
iv.         Front-Line Support Services:  Call receipt, entitlement verification, call screening, installation assistance, problem identification and diagnosis, efforts to create a repeatable demonstration of an Error, and other similar activities for Subscription Users, and, the distribution of Maintenance Releases and Upgrades, if any, to Subscription Users.
v.         Maintenance Period:  The time period that runs concurrently with the Subscription Period. 
vi.         Maintenance Patch:  A correction, workarounds and/or patches to the Software to correct a particular Error. A Maintenance Patch is not a Maintenance Release or Upgrade.
vii.        Maintenance Release:  A revision to the Software (designated by Zmanda by a change in the version number to the right of the decimal place) or patch that improves the functionality of the Software, and may contain minor new features or enhancements. A Maintenance Release is not an Upgrade.
viii.       Response Time:  The amount of elapsed time between the reporting by an Authorized Contact of an Error as provided in this Agreement and the response from a Zmanda technical support engineer acknowledging receipt of an Error. 
xi.         Support Services Plan:  The specific Support Services Plan for which Company selects and qualifies based on the amount of fees that are or would have been due to Zmanda for the initial Subscription Period at Zmanda’s standard list prices without any discounts, and which is described below.
x.         Upgrade:  Any release of the Software designated by Zmanda by a change in the version number to the left of the decimal place that Zmanda makes generally commercially available, excluding Maintenance Releases, Maintenance Patches and products designated by Zmanda as separate products or new components. To receive and use an Upgrade Company must pay the applicable Subscription Fees for that Software.
xi.         Working Days:  Defined as all calendar days excluding Saturdays, Sundays and Zmanda holidays.
xii.        Working Hours: Defined as the hours between 8:00 a.m. and 5:00 p.m. Local Time on Working Days.
B.        Zmanda Technical Support
i.          Zmanda's Obligations:  Subject to the Company’s payment of the Subscription Fees and any additional Maintenance Fees, if applicable, and compliance with the terms and conditions of this Agreement, Zmanda will provide to Company Back-End Support Services, in accordance with the terms and applicable levels of the Support Services Plan for the Subscription Users paid for by Company during the Maintenance Period. For the avoidance of doubt, all maintenance and support to be provided by Zmanda pursuant to this Agreement shall only be provided for Errors reported by the Company’s Authorized Contact(s).
ii.          Reporting Method:  Zmanda will provide Company with access to an online submission system (the “Support Portal”) that Company's Authorized Contact(s) may use to report Errors and the proposed Priority Level. Only Authorized Contacts may use the Support Portal, and only for the purpose of tracking Company's own Errors and the status of the corrections.  Company must comply with all troubleshooting and technical database procedures relevant to an Error prior to contacting Zmanda. Additional reporting methods may be available in accordance with the terms of the Support Services Plan as set forth below.
iii.         Error Correction:  Zmanda will make reasonable commercial efforts to correct Errors that an Authorized Contact reports to Zmanda in a manner set forth by the applicable Support Services Plan and that Zmanda reproduces in its own execution environment.  If an Error report is received by Zmanda during Working Hours, Zmanda will use reasonable commercial efforts to communicate with the Authorized Contact about the Error, within the applicable Response Times for the Priority Level finally classified by Zmanda as set forth below in Subsection iv. The Authorized Contact must provide sufficient information to Zmanda to enable Zmanda to duplicate the Error before Zmanda’s response obligations will commence. Zmanda will use reasonable commercial efforts to provide an appropriate workaround, a Maintenance Patch or a specific action plan for how Zmanda will address the Error and an estimate of how long it will take to rectify the defect or Error.
iv.         Reclassification of Errors:  Notwithstanding that the Authorized Contacts may suggest classifications of an Error to an applicable Priority Level when reporting an Error, Zmanda shall have the final authority to classify the Priority Level of an Error and may reclassify Errors at another Priority Level if it reasonably believes that Company's classification is incorrect.
v.         Exceptions:  Unless otherwise authorized in writing by Zmanda, Zmanda will not be required to correct any Error determined by Zmanda to be caused by (a) incorporation with or attachment of a feature, program, or device to the Software, or any part thereof, by a party other than Zmanda; (b) any nonconformance caused by accident, transportation, neglect, misuse, alteration, modification, or enhancement of the Software other than by Zmanda; (c) Company's failure to provide an installation environment recommended for the Software; (d) Company's use of the Software for other than the specific purpose for which the Software is intended; (e) Company's use of the Software on any systems other than the specified hardware platform for the Software; (f) Company's use of defective media or defective duplication of the Software; (g) Company’s attempts to resolve or fix Errors; and/or (h) Company's failure to incorporate any Maintenance Release previously released by Zmanda which corrects such Error.
vi.         Right to Subcontract:  Zmanda may subcontract and/or assign the provision of its Support Services Plans.
vii.        Maintenance Patches and Maintenance Releases:  If the Company has paid the Subscription Fees and any additional Maintenance Fees, if applicable, and is in compliance with the terms and conditions of this Agreement, Company will be entitled to receive any Maintenance Patches and Maintenance Releases to the Software made generally available by Zmanda during the Maintenance Period. Maintenance Patches and Maintenance Releases released during the Maintenance Period shall be made available in a manner determined by Zmanda, such as on a Zmanda-designated web site for access or electronic download by Company. Zmanda shall provide Company with instructions regarding registration for such access or electronic downloads. When a Maintenance Patch or Maintenance Release is available, Company will receive notice from Zmanda indicating such availability. The use of each Maintenance Patch or Maintenance Release obtained under this Agreement is governed by the terms of the Agreement. Company shall be required to implement all Maintenance Patches and Maintenance Releases and/or replace the Software it has installed as soon as commercially practicable after notification by Zmanda of the availability of such Maintenance Patches and Maintenance Releases or replacement Software, as applicable.
viii.       Renewal of Support Services Plan:  If Company is on the Standard Support Services Plan, the Maintenance Period for such plan will run concurrently with, and renew or terminate on the same date as, the Subscription Period.  If Company is on a Support Services Plan other than the Standard Support Services Plan, at least thirty (30) days prior to expiration of the Maintenance Period, Company shall notify Zmanda of its intent to renew Company’s Support Services Plan at the same plan level or a different plan level and Zmanda shall have the discretion to determine the applicable Support Services Plan level on renewal.  If Company does not give Zmanda such notice, the Company shall be deemed to have elected to continue its support under the same Support Services Plan as the preceding Maintenance Period.  Any such renewal will run concurrently with the Subscription Period. 
ix.         Company Obligations:  Company, and not Zmanda, will be responsible for, and will bear all expenses associated with, providing Front-Line Support Services to its Subscription User(s) and implementation and installation of Maintenance Patches and Maintenance Releases.  Company agrees to use reasonable commercial efforts to answer its Subscription Users’ support questions. Company agrees that any information or documentation distributed by Company to its Subscription Users will clearly and conspicuously state that Subscription Users should call Company for technical support for the Software. Zmanda will have no obligation to furnish any assistance, information or documentation with respect to the Software directly to Subscription Users. Company agrees that only Authorized Contacts will contact Zmanda for technical support. If Zmanda technical support representatives are being contacted by Subscription Users then, upon Zmanda’s request, Company and Zmanda will cooperate to minimize such contact. Company must establish and maintain a procedure for reconstruction of lost or altered files, data or programs. Company agrees that its Authorized Contacts will have sufficient technical expertise, training and/or experience for Company to perform its obligations hereunder. Company will designate for Zmanda, in writing and/or e-mail, its list of Authorized Contacts within one week of the Effective Date.
x.         Fees:  Other than the Subscription Fees, no additional fees are payable by Company for the Standard Support Services Plan.  For the Extended Support Services Plan or the Premium Support Services Plan, as applicable, Company shall pay to Zmanda an amount specified on www.Zmanda.com or as otherwise agreed in writing by an authorized representative of Zmanda for the total number of Subscription Users (“Maintenance Fee”).  If the election to upgrade occurs on a date other than the first day of the Initial Term or Renewal Term, the Maintenance Fee shall be pro-rated for the remaining period of the Maintenance Period based on a 365 day year.  All fees paid to Zmanda are non-refundable.

Support Services Plans:

• Basic Support Services Plan
• Access to online Support Portal available at https://network.zmanda.com as a reporting method
• Access to email as a reporting method
• Access to online discussion forums or “Company Forums”
• No telephone support
• One Authorized Contact
• Standard Support Services Plan
• All features of Standard Support
• Telephone support available during Working Hours
• One Additional Authorized Contact (2 total)
• Premium Support Services Plan
• All features of Standard Support
• Telephone support available during Working Hours
• 3 hour response for Priority 1 issues, 24x7x365
• Assigned support representative
• Technical account reviews once per quarter
• Two additional  Authorized Contacts (4 total)

Priority Definitions

• Priority 1: Business critical (only available for production systems). Error that results in a complete loss of functions of the Software; a significant function of the Software that is not available; and no workaround exists. Does not include installation issues or problems in staging environments.
• Priority 2: Severe impact. An Error that significantly degrades a major function of the Software.
• Priority 3: Degraded operations. An Error that results in slight impairment in functions of the Software. Includes feature requests and cosmetic defects.
• Priority Response Times: Zmanda will use commercially reasonable efforts to respond within the Response Times set forth below according to the Priority levels and Support Services Plan selected by Company.