FalconStor Lifecycle Assurance Plan and Individual Services Engagements

Terms and Conditions

The following basic terms and conditions shall govern the Lifecycle Assurance Plan and Individual Services Engagements plus any associated Statements of Work (“SOW” or “SOWs”):

1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in a SOW.
2. Payment is due upon Customer’s receipt of each invoice. Should any invoice remain unpaid for more than thirty days, interest shall be paid at a rate of 1.5% per month. Any taxes arising out of this arrangement other than those on FalconStor’s net income shall be Customer’s responsibility. FalconStor shall be reimbursed by Customer for all reasonable and pre-approved expenses incurred by FalconStor, including, but not necessarily limited to, travel and lodging expenses, communications charges and supplies.
3. Change Orders. Changes to the scope of a SOW shall be made only in a writing executed by authorized representatives of FalconStor and Customer.
4. Customer Obligations. Customer acknowledges that its input is critical and agrees that Customer will take all actions which are its responsibility under a SOW in a timely, accurate and complete manner, and will make all decisions in a timely manner and without delay. Delays in completion of the Customer obligations by Customer or the work by FalconStor that occur as a result of inadequate, inaccurate, or untimely performance by Customer of its responsibilities set forth in a SOW, may give rise to the need for remedial measures in order to complete the work in a timely manner and/or an extension of time for the completion of the work including additional cost to Customer. Unless otherwise set forth in a SOW, and unless FalconStor’s actions or inactions are the sole cause of delay, each SOW shall expire one hundred eighty (180) days from the date of the last signature on the SOW.
5. Limitation of Liability. FALCONSTOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, OR OTHER LOSS OR EXPENSE (INCLUDING LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, LOSS OR EXPENSE. IN ANY EVENT, THE LIABILITY OF FALCSONSTOR TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE ANNUAL FEE (NOT INCLUDING EXPENSES) PAID TO FALCONSTOR BY CUSTOMER. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. ANY ACTION BY A PARTY MUST BE BROUGHT WITHIN THE EARLIER OF TWO (2) YEARS AFTER SUCH PARTY OBTAINS KNOWLEDGE OF THE FACTS LEADING TO SUCH ACTION AND THE APPLICABLE STATUTE OF LIMITATIONS.
6. Customer shall indemnify, defend and hold harmless FalconStor, its employees, officers, directors, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused by the negligence or willful misconduct of Customer during the performance of the work.
7. Third Party Software and Hardware. FalconStor’s responsibility is limited to the FalconStor-based software and storage infrastructure. Customer is responsible for the acquisition and the performance of all other software and all hardware.
8. FalconStor warrants that its services will be performed in a good and workmanlike manner. FalconStor’s sole obligation, and Customer’s sole and exclusive remedy, under this warranty is to reperform any work not in compliance with this warranty brought to its attention within a reasonable time (not to exceed thirty days), after that work is performed.
9. Disclaimer of Warranty. THE WARRANTY SET FORTH IN SECTION 8 IS A LIMITED WARRANTY, IS FALCONSTOR’S ONLY WARRANTY CONCERNING THE SERVICES TO BE PERFORMED UNDER A SOW, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. FALCONSTOR’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF FALCONSTOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE WORK.
10. Non-Solicitation. Customer agrees that it will not, without the prior written consent of FalconStor, solicit or hire any employee of FalconStor or any of its subsidiaries, or induce any such employee to leave FalconStor’s employment, directly or indirectly, for a period beginning on the date of a SOW and ending of twelve (12) months after the last date any service is provided by FalconStor under a SOW.
11. Intellectual Property. FalconStor shall own all right, title and interest in all work performed by FalconStor or any affiliate(s) under a SOW. No work performed under a SOW shall be deemed to be “work for hire” under United States law.
12. Force Majeure. Neither party shall be liable for any delays or failures in performance (other than payment obligations hereunder) due to circumstances beyond its reasonable control.