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<br />- 2 -
<br />Federal Acquisition Regulation Supplement
<br />(“DFARS”) 227.7202 for military agencies. The
<br />Software and documentation is commercial
<br />computer software and commercial computer
<br />software documentation. The use of the Software
<br />and documentation is further restricted in
<br />accordance with the terms of this Agreement, or
<br />any modification thereto.
<br />
<br />2. Software Support.
<br />
<br />2.1 Scope of Software Support. Farragut will
<br />provide Customer with support services as set forth
<br />in this Section 2 and Schedule B in accordance
<br />with Farragut’s standard policies, as adopted by
<br />Farragut from time to time (“Software Support”).
<br />Software Support is subject to Customer’s proper
<br />use of the Software, Customer’s cooperation with
<br />Farragut as provided in Section 5.4, the Exclusions
<br />from Warranty and Support Coverage set forth in
<br />Section 3.2, Customer’s payment of the required
<br />Annual Support Fees, and Customer’s continued
<br />compliance in all material respects with the terms
<br />of this Agreement.
<br />
<br />2.2 Term of Software Support. Annual
<br />Support Fees will be invoiced upon 12 month
<br />periods, as further described in Section 4.2. If
<br />Customer does not pay the invoice for the next
<br />annual Software Support period, then Software
<br />Support will not be renewed. If Customer elects to
<br />purchase Software Support, then Customer must
<br />purchase Software Support with respect to all of
<br />the Software licensed by Customer. All Annual
<br />Support Fees are nonrefundable except as
<br />expressly provided herein.
<br />
<br />2.3 Termination. By notifying the other party in
<br />writing at least 30 days before expiration of the
<br />Software Support period, a party may elect to
<br />terminate Software Support for the Software. If this
<br />Agreement is terminated, then Software Support
<br />also will terminate.
<br />
<br />2.4 Modifications. Farragut may modify its
<br />Software Support upon written notice to Customer,
<br />except that in no event may Farragut make any
<br />modifications to its Software Support that would
<br />materially reduce the level of Software Support that
<br />Farragut provides to Customer hereunder during
<br />the then-current term for which Customer has paid
<br />Annual Support Fee.
<br />
<br />3. Limited Warranties.
<br />
<br />3.1 Software Limited Warranty. Farragut
<br />warrants that during the Warranty Period the
<br />Software will perform, during normal and proper
<br />use, substantially as described in the specifications
<br />set forth in the then-current Documentation
<br />accompanying the Software, when the Software
<br />has been properly installed. Due to the complex
<br />nature of computer software, Farragut does not
<br />warrant that the functions contained in the Software
<br />or in any Software Maintenance Release will meet
<br />the requirements of Customer or that the operation
<br />of the Software, including Software Maintenance
<br />Releases, will be uninterrupted or error free.
<br />Failure to conform to the warranty must be reported
<br />by Customer to Farragut in writing within the
<br />Warranty Period and must be accompanied with
<br />sufficient written detail to enable Farragut to
<br />reproduce or verify the error and provide a solution
<br />or suitable work-around. If the Software does not
<br />conform to this warranty and Farragut is properly
<br />notified of non-conformance during the Warranty
<br />Period, Farragut will make commercially
<br />reasonable efforts to provide a remedy or suitable
<br />workaround, at no additional charge to Customer.
<br />Customer acknowledges and agrees that this
<br />warranty is contingent upon and subject to
<br />Customer’s proper use of the Software in
<br />accordance with the then-current Documentation,
<br />and the Exclusions from Warranty and Support
<br />Coverage set forth in Section 3.2. The remedies
<br />set forth in this Section 3.1 are the full extent of
<br />Customer’s remedies and Farragut’s obligations
<br />regarding this warranty.
<br />
<br />3.2 Exclusions from Warranty and Support
<br />Coverage. The warranties under this Section 3 and
<br />Software Support under Section 2 do not cover
<br />defects, errors, or malfunctions that are caused by
<br />any external causes, including, but not limited to,
<br />any of the following: (a) Customer’s failure to follow
<br />operational, support, or storage instructions as set
<br />forth in applicable Documentation; (b) the use of
<br />non-compatible media, supplies, parts, or
<br />components; (c) modification or alteration of the
<br />Software or its components, by Customer or any
<br />third party; (d) use of software not supplied or
<br />authorized by Farragut; (e) external factors
<br />(including, without limitation, power failure, surges
<br />or electrical damage, fire or water damage, air
<br />conditioning failure, humidity control failure, or
<br />corrosive atmosphere harmful to electronic
<br />circuitry); (f) failure to maintain proper site
<br />specifications and environmental conditions; (g)
<br />negligence, accidents, abuse, neglect, misuse, or
<br />tampering; including attacks by malicious software
<br />such as viruses, Trojan horses, worms, time
<br />bombs, cancelbots or other similar harmful or
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