- DRAFT - SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT This agreement is made between X2O Media Inc., a Canada corporation under the laws of Canada, with principal offices at 147 St Paul Street West, Suite 300, Montréal, Québec, Canada H2Y 1Z5, hereinafter called X2O and «company name» located at «client address here» herein after called the Client. This agreement will become effective on «date». The parties hereby agree as follows: 1 Definitions: 1.1 The Licensed Software means the software known as X2O, Xpresenter or any other X2O software product(s) for which the Client has signed or otherwise accepted a valid Software License Agreement for the software product(s). 1.2 Maintenance Release means all patches and bug fixes designed to correct any functional problem or deficiency in the software product(s). These are released from time to time at the discretion of X2O. X2O defines the Maintenance Releases for a specified software version as being those releases with the same software version number in the first two positions, and any number in the third position (e.g., any version numbered 2.0.x would be a Maintenance Release for version 2.0). 1.3 Minor Update means all functional and/or feature enhancements that are incorporated and released at the discretion of X2O from time to time, to improve and/or otherwise enhance the product(s) functionality. X2O defines all Minor Updates as being those releases with a version number other than zero in the second position (e.g., 2.1 or 2.2.). 1.4 Version Update means a significant change in the software functionality and/or architecture deemed by X2O to be so, and is represented as a change to the first number in the software version number (e.g., 2.0 to 3.0, or 2.5 to 3.0, or 2.7 to 3.1). Installation and use of Version Updates will require modification of existing projects and templates; such modifications are not included under this agreement. The release notes will explain the upgrade path and in addition, X2O offers services, subject to separate fees, to implement upgrade modifications including making required modifications to existing software, templates and integration and testing. 1.5 Minimum System Requirements means the computer configuration as defined in Appendix 3. If there are any configuration discrepancies with other X2O documentation, this configuration shall take precedence. Version Updates X2O may, at its sole discretion, revise the Minimum System Requirements as it deems necessary for compatibility with new Version Updates. 1.6 Client Contact means the authorized individuals specified in Appendix 4 by the Client with whom X2O communicates when providing support services. The Client Contact maybe an employee or a consultant providing services to the Client. The Client Contact must be knowledgeable about the Licensed Software and the operating environment. The Client may change the name of the Client Contact by written notice to X2O.
2 Scope of Agreement 2.1 Subject to the terms of this Agreement, X2O hereby agrees to provide to the Client and the Client hereby purchases from X2O the Software Support and Maintenance services described under the Scope of Coverage section of Appendix 1 hereto (the Services ) with respect to the Licensed Software in accordance with the Procedures set out in Appendix 2 hereto (the Procedures ). 2.2 The following tasks and services are NOT covered under this Agreement: 2.2.1 The integration and installation of the Licensed Software; 2.2.2 User training; 2.2.3 Travel and living costs to the Client s site, 2.2.4 The installation and integration of any Maintenance Release, Minor Update or Version Update(s) made available by X2O; 2.2.5 The interaction with software or firmware and hardware not provided by X2O and any custom software provided by X2O; 2.2.6 Any software or hardware problems resulting from any third party software or hardware failure; 2.2.7 Any extraordinary expenses; X2O reserves the right to charge for unusual or excess telephone, shipping, handling, media or user manual expenses in connection with the performance of this Agreement; All extraordinary expenses will be communicated to the Client in advance. 3 Conditions: 3.1 The performance of the Services under this Agreement is conditional upon the existence or occurrence of the following facts or events: 3.1.1 A valid Software License Agreement by the Client. 3.1.2 The retention by the Client of the software and hardware environment that the deliverables were tested and delivered on. This includes all software and hardware that the X2O software runs under, as well as all other systems to which X2O software interfaces. 3.1.3 The adherence by the Client to the Procedures set out in Appendix 2 hereto. 3.1.4 The installation and operation by the Client of the Licensed Software on a computer system that meets or exceeds the Minimum System Requirements. 3.1.5 The designation by the Client of a Client Contact and communication of this person s name and contact information to X2O as stipulated in Appendix 4; The Client agrees that the Client Contact person shall have the authority to accept fixes as final. 3.2 The Client is solely liable for any compatibility problems between the Licensed Software and any other application or other software programs not covered under a maintenance and Last updated: September 2014 2 of 13
support contract between the Client and X2O. The Client, at its expense, will (i) promptly install and implement all Maintenance Release or Minor Update provided by X2O to the Client; (ii) provide X2O access to the Licensed Software for purposes of performing the Services under this Agreement; and (iii) provide X2O with such assistance, information, services and facilities as may be requested by X2O to perform the Services under this Agreement. 4 Term and Termination: 4.1 The term of this agreement is for a period of twelve (12) months from the execution of this Agreement by the parties (the Effective Date ). X2O reserves the right to terminate this Agreement immediately at any time if the Client is in breach of any of its obligations under Section 5 or Section 3 of this Agreement. 4.2 X2O may terminate this Agreement immediately, upon notice to the Client, in case of any breach by the Client of any of its obligations, which breach remains uncured for fifteen (15) days. 4.3 Notwithstanding anything to the contrary herein, this Agreement shall automatically terminate upon the termination of the Software License Agreement. 5 Payment: 5.1 The Client agrees to pay X2O the Fees set forth in the Purchase Order(s) or Invoice(s) with respect to the Services. All fees are in United States currency, unless otherwise stipulated. Client agrees that all fees shall be paid in full within thirty (30) days, from the Effective Date. 5.2 All per diem rates and extraordinary expenses will be invoiced after the services are rendered and Client agrees to pay thirty (30) days after the invoice has been issued. 5.3 Any shipment of update(s) and documentation will be FOB X2O s facility Montréal, Québec, Canada. 5.4 Client shall pay, indemnify and hold X2O harmless from all sales, use, gross receipts, valueadded, personal property, or any other tax or levy (including interest and penalty) imposed on the Licensed Software or Services provided hereunder. 6 Renewal: 6.1 Renewal is automatic and two (2) months prior to the expiration of the then current Software Support and Maintenance Agreement, X2O will send out an invoice stating the prevailing rates to the Client. The originally signed Software Support and Maintenance Agreement will remain in effect for this term. 6.2 The effective date for renewal must be on or before the current agreement expires. 7 Disputes, Choice of Law 7.1 THIS AGREEMENT SHALL BE INTERPRETED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS IN FORCE IN THE PROVINCE OF QUEBEC, WITHOUT REGARD TO CONFLICTS OF LAW RULES. The parties hereby agree to exclude the United Nations Convention on Contracts for the International Sale of Goods from this Agreement. The parties hereby agree that disputes between them that cannot be resolved will first be Last updated: September 2014 3 of 13
submitted to their respective Chief Operating Officers (or their equivalent) for resolution. Any remaining disputes shall be submitted to a panel of three (3) arbitrators who are familiar with the software industry. Each party will choose one arbitrator and the third arbitrator will be chosen by the first two arbitrators. If the first two arbitrators cannot agree on the choice of the third arbitrator, X2O will choose the 3 rd arbitrator. Notice of arbitration shall be given in writing to the other party. The choice of an arbitrator shall be communicated to the parties concerned within ten (10) days from the initiation of arbitration. Each party shall be responsible for their respective costs of arbitration. An award by the arbitrators shall include a written explanation of their decision and shall be limited to the remedies otherwise available in court. 8 Notices 8.1 All official notices concerning this agreement must be mailed to the address below. 8.1.1 To: X2O Media: 147 St Paul Street West, Suite 300 Montréal, Québec, Canada, H2Y 1Z5 Attention: Michael Gallagher, Director, Operations Email: support@x2omedia.com 8.1.2 To: Client s Name Client s address Attention: Fax: Email: 9 Limited Warranty 9.1 CLIENT EXPRESSLY AGREES THAT ALL SOFTWARE UPDATES AND SOFTWARE MAINTENANCE FIXES AND/OR PATCHES ARE PROVIDED AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER. 9.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY, IF ANY, OF X2O, ITS AFFILIATES, OFFICERS, EMPLOYEES, LICENSORS, MANUFACTURERS, SUBCONTRACTORS OR SUPPLIERS FOR DAMAGES OF ANY TYPE RELATING TO THE LICENSED SOFTWARE, UPDATE(S) AND SUPPORT SERVICES OR OTHERWISE ARISING OUT OF, RELATED TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT EXCEED THE ACTUAL AMOUNT PAID IN HEREUNDER BY THE CLIENT FOR SIX MONTHS OF SUPPORT FEES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, TRADE PRACTICES OR OTHERWISE. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHICH PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT WILL X2O BE LIABLE FOR ANY CLAIM BROUGHT BY THE CLIENT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL X2O, ITS AFFILIATES, OFFICERS OR EMPLOYEES OR THE MANUFACTURERS, LICENSORS, Last updated: September 2014 4 of 13
SUBCONTRACTORS OR SUPPLIERS OF THE LICENSED SOFTWARE OR UPDATE(S) AND SUPPORT SERVICES BE LIABLE TO THE CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, MULTIPLE OR RELIANCE DAMAGES WHATSOEVER, WHETHER SUCH ALLEGED DAMAGES ARE ALLEGED IN CONTRACT, TORT OR OTHERWISE (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR LOSS OF USE DAMAGES) EVEN IF X2O HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE DAMAGES ARE FORESEEABLE. 9.3 EACH PARTY HEREBY WAIVES ANY CLAIM AGAINST THE OTHER FOR LOSS OR DAMAGE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER COMPENSATION FOR UNJUST ENRICHMENT, LOSS OF PROSPECTIVE PROFITS, REIMBURSEMENTS FOR EXPENDITURES OR INVESTMENTS MADE, OR COMMITMENTS ENTERED INTO OR GOODWILL), DUE TO FAILURE OF THE PARTIES TO RENEW THIS AGREEMENT OR, UPON EXPIRATION, TO MAKE A SIMILAR AGREEMENT. 10 Confidentiality 10.1 Client agrees that the Terms and Conditions of this Agreement constitute confidential and/or proprietary information of X2O and Client agrees not to use this agreement or its terms or conditions for any commercial purpose of Client or others, and agrees not to disclose its terms to anyone other than those employees of Client having a need to know in connection with the execution, delivery and administration of this Software Support and Maintenance Agreement. 11 Miscellaneous: 11.1 The Client acknowledges that the Client has read the entire agreement and agrees to be bound by the all the conditions of this agreement. 11.2 This agreement together with the X2O Software License Agreement issued to the Client, constitutes the complete and exclusive statement of understanding between the two parties and supersedes any and all prior oral or written communications(s) relating to the subject matter hereof. 11.3 This agreement may NOT be altered, modified or amended in any way without the written consent of both parties. In no event shall a purchase order amend, modify or supplement any of the terms of this agreement. 11.4 The signatory of this Agreement on behalf of the Client acknowledges that he or she is authorized to accept the terms of this agreement on behalf of the Client. 11.5 The Client may not assign this agreement to a 3 rd party without the prior written consent of an officer of X2O. 11.6 The parties hereby request that this agreement and all correspondence between the two parties be written up in and communicated in the English language. Les parties demandent que la présente convention et toute correspondance entre les parties soient rédigées et communiquées en langue anglaise. Last updated: September 2014 5 of 13
IN WITNESS WHEREOF, for adequate consideration of the annual Software Support and Maintenance Fee contained in the Purchase Order(s) or Invoice(s) and intending to be legally bound, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. X2O Media Company Name Name (Print): Name: Signature: Signature: Title: Title: Date: Date: Last updated: September 2014 6 of 13
Scope of Coverage for Support: APPENDIX 1 - SCOPE OF COVERAGE 1. Support will be provided to Client by [enter partner name]. 2. Support will be provided for the following types of issues: - questions on specifications, configuration, usage, and compatibility of X2O Media software or Web-based tools; - software issues (e.g., display content correctness, display performance) in X2O Media software or browser-based tools; - compatibility issues between X2O Media software and Microsoft Windows; - compatibility issues between X2O Media software and other officially supported thirdparty software or hardware products; and - data service issues for data provided by X2O Media. 3. Support will be provided for the most recent Maintenance Release or Minor Update provided by X2O for the current and previous major release versions (for example, if versions 2.7.3 and 3.2 are the most recent releases in the 2.x and 3.x families, they would be supported, but releases 2.5, 2.7.2, or 3.1.4 would not). 4. For compatibility issues between X2O Media software and any third-party products, Support will assist the Client in troubleshooting the issue but may be unable to assist in resolving the issue when the source of the issue is within the third-party product. If the Client plans to upgrade or modify third-party software or hardware components that interact with X2O Media software, they are required to confirm in advance with Support that the upgrade they are planning is supported and compatible with their X2O Media software. If required for compatibility with newer third-party releases, modifications to custom pages and tools will require custom development from X2O Media and are not covered by Support. 5. Support will assist the Client with usage questions on their supported X2O Media software. However, customer support is not an adequate replacement for product training. If, in the judgment of Support, responses to the Client s product usage questions are crossing the line into detailed product training (for example, going through a detailed step-by-step feature introduction over the phone), Support may at their discretion refer the Client to X2O Media Sales or the Client s designated reseller to arrange a training session which is not included in the Client s X2O Media Support program. 6. Client can contact Support by any of the means outlined in Appendix 2, during designated Support hours to provide problem reporting and resolution in accordance with Appendix 2. Problems reported outside Client s designated Support hours will receive a response and follow-up once Support hours have resumed. 7. Web-based access to online versions of Documentation and User Guides is available at the X2O Media Support Portal. Access to the X2O Media Support Portal requires a valid user name and password issued by X2O Media Support. Client can obtain a user name and password by contacting X2O Media Support at support@x2omedia.com. 8. Maintenance Releases and Minor Updates are released from time to time throughout the year and are made available on the X2O Media FTP site. Client can obtain access information for the FTP site from X2O Media Support. 9. Support entitles Client to purchase Version Updates at a 40% discount from the MSRP in effect at that time. Last updated: September 2014 7 of 13
10. Support entitles Client to online access to X2O Media FAQs, Tutorials and Guides through the X2O Media Support Portal. 11. Support entitles Client to receipt of the X2O Media Support Newsletter published regularly via e-mail by the Support Team. Last updated: September 2014 8 of 13
APPENDIX 2 - PROCEDURES Procedures: 1. The Client Contact must report any problem to [enter partner name]. 2. The Client Contact can contact Support by any of the following means: - by email at [enter email] ; - by telephone at [enter tel number] ; 3. The Client Contact must submit sufficient material and information as requested by the Support staff to understand the issue and begin work on a resolution. Specifically, the Client must provide Support with all of the following: - information on the nature, causes, and impact of the issue, in as much detail as possible; - log files, configuration files, screen images, and other information required for issue troubleshooting and analysis; - remote login or VPN access to their systems, where required (and where permitted by Client security policies), or, as an alternative, to work directly on their systems while in contact with Support; - support and coordination for on-site visits by X2O Media or reseller support staff, where deemed necessary by Support; and - timely responses to questions and requests. 4. The availability of software fixes, if applicable, will be communicated to the Client Contact immediately once X2O Media establishes if any Maintenance Release or Minor Update will be issued. 5. When the software update and/or configuration changes are supplied and installed successfully, the Client Contact must confirm to Support that the problem has been resolved. Support will submit a final email to the Client Contact serving as notice that the matter is considered closed. Last updated: September 2014 9 of 13
APPENDIX 3 - MINIMUM SYSTEM REQUIREMENTS Updated: September 24, 2014 X2O Server X2O Server that supports 0 to 50 player connections. CPU Memory Storage Operating System Intel Dual Core Xeon 4 GB or more 200 GB or more SATA II, 7200 RPM Microsoft Windows Server 2008 R2 (64 bit) Software Microsoft.NET Framework 4.5 Database Microsoft SQL Server 2008 R2 Express X2O Server that supports 50 to 200 player connections. CPU Memory Storage Operating System Intel Quad Core Xeon 6 GB or more 500 GB or more SATA II, 7200 RPM (recommend RAID protection) Microsoft Windows Server 2008 R2 (64 bit) Software Microsoft.NET Framework 4.5 Database Microsoft SQL Server 2008 R2 Express X2O Server that supports 200+ player connections. CPU Memory Storage Operating System Minimum Intel Quad Core Xeon (scale up as player count increases) 8 GB or more 200 GB or more SATA II, 7200 RPM (recommend RAID protection) Microsoft Windows Server 2008 R2 (64 bit) Software Microsoft.NET Framework 4.5 Database Content Separate redundant/clustered database server Microsoft SQL Server 2008 R2 (64 bit), with FILESTREAM enabled Separate content distribution server Minimum 200 GB disk space (actual storage requirement depends on the amount of content) Microsoft Windows Server 2008 R2 (64 bit), with IIS enabled Last updated: September 2014 10 of 13
Data Separate data portal server Microsoft Windows Server 2008 R2 (64 bit), with IIS enabled X2O Player CPU Memory Storage Video in Video out Operating system Software Intel Core i5, 1066 MHz FSB or better 4 GB DDR2, 800 MHz or better 160 GB SATA II, 7200 RPM or greater Increase storage capacity for implementations that require a lot of video. S-Video (for example, Satellite TV, DVD, or Camera) requires an additional video capture card. X2O Media recommends the Black Magic Intensity Pro: http://www.blackmagic-design.com/products/intensity PCI-Express x16 card with 256 MB or more memory; HDMI, DVI or VGA (see note below) Microsoft Windows 7 (32 or 64 bit) Microsoft.NET Framework 4.0 Extended Standard HD and SD output resolutions are supported. Channels with system-intensive media may constrain real-time performance for HD output or HD live input. A dedicated graphics card with at least 1 GB of on-board memory and a minimum memory bandwidth of 64 GB/s is required. Contact Support for more information. X2O Player for multiple outputs (eg, videowall) CPU Memory Storage Video in Intel Core i7, 1066 MHz FSB or better 6 GB DDR2, 800 MHz or better 160 GB SATA II, 7200 RPM or greater Increase storage capacity for implementations that require a lot of video. S-Video (for example, Satellite TV, DVD, or Camera) requires an additional video capture card. X2O Media recommends the Black Magic Intensity Pro: http://www.blackmagic-design.com/products/intensity Last updated: September 2014 11 of 13
Video out Operating system Software PCI-Express x16 card with at least 1 GB of on-board memory and a minimum memory bandwidth of 64 GB/s Microsoft Windows 7 (64 bit only) Microsoft.NET Framework 4.0 Extended X2O Player Desktop CPU Memory Storage Video in Video out Operating system Software Intel Core i5, 1066 MHz FSB or better 4 GB DDR2, 800 MHz or better 160 GB SATA II, 7200 RPM or greater Increase storage capacity for implementations that require a lot of video. S-Video (for example, Satellite TV, DVD, or Camera) requires an additional video capture card. X2O Media recommends the Black Magic Intensity Pro: http://www.blackmagicdesign.com/products/intensity PCI-Express x16 card with 256 MB or more memory; HDMI, DVI or VGA (see note below) Microsoft Windows 7 (32 or 64 bit) Microsoft.NET Framework 4.0 Extended Standard HD and SD output resolutions are supported. Channels with system-intensive media may constrain real-time performance for HD output or HD live input. A dedicated graphics card with at least 1 GB of on-board memory and a minimum memory bandwidth of 64 GB/s is required. Contact Support for more information. Last updated: September 2014 12 of 13
APPENDIX 4 - CLIENT CONTACT INFORMATION Client Contact #1: Name Title Company Name Phone Fax Mobile Phone E-mail Mailing Address Client Contact #2: Name Title Company Name Phone Fax Mobile Phone E-mail Mailing Address Last updated: September 2014 13 of 13