Maintenance Services Policy

This Maintenance Services Policy was last updated on August 31, 2011.

This Maintenance Services Policy ("Maintenance Policy") states the terms and conditions under which Spark Integration Technologies, Inc. ("Spark") will perform, and Customer will receive, the services described herein.

1. TERM OF AGREEMENT

This Maintenance Policy covers the period of the applicable License Agreement and other supporting documentation between Spark and Customer.

2. DEFINITIONS

Unless otherwise defined in the Maintenance Policy, the definitions set forth within the separate software license agreement ("Agreement") between the parties applies to the Maintenance Policy to the extent such terms are used in the Maintenance Policy.

2.1. "Distrix Support Program" means the Spark services that implement the Maintenance Policy.

2.2. "Customer Contact" means identified Customer personnel who are familiar with Customer's software, hardware and network environment. It is Customer's responsibility to inform Spark of any relevant change to Customer Contact information.

2.3. "Incident" means any reported malfunction, error, other defect in the Software that can be reproduced by Spark and constitutes a non-conformity from the Documentation, or a request for information, or a request for enhancement. Each Incident will be assigned a Severity as further detailed in Section 7 below.

2.4. "Production System" shall mean a computer system hosted by Customer upon which the Software is installed and resident and which is used by Customer for purposes other than development, quality assurance, disaster recovery or testing.

2.5. "Relief" shall mean an intervention by Spark that restores Software operations impacted by an Error. Examples may include without limitation: (i) a solution or workaround has been provided to resolve the Software issue; (ii) Customer's Software is operational; and/or (iii) the identified Error does not originate from the Software.

2.6. "Service Request" shall mean a ticket that has been opened, documented, and is being managed by Spark in response to a Customer reported Incident.

3. MAINTENANCE SERVICES

The services described in this Maintenance Policy will be performed during the hours of 9:00 a.m. - 6:00 p.m., Pacific Time, Monday through Friday, except for the following Spark-designated company holidays:

• New Years Day
• Good Friday
• Victoria Day
• Canada Day
• B.C. Day
• Labour Day
• Thanksgiving Day (Canada)
• Remembrance Day
• Christmas Day.

Spark will use its commercially reasonable efforts to provide a timely resolution to reported problems, in accordance with this Policy. All cases will be managed based on the priority rules, as indicated by the severity of the case.

To facilitate resolution of issues, Customers are responsible for providing certain diagnostic information as listed in Section 4.

Maintenance Services generally fall into the following categories:

• Technical Assistance
• Software Maintenance

a) Technical Assistance

Technical assistance is offered for the Spark components for which Maintenance Services are ordered, per the relevant License Agreement. Spark support representatives will provide assistance with the diagnosis of product configuration issues and failures specific to Software. The required information is listed in Section 4.1.

Spark will use good-faith, commercially reasonable efforts to aid in the diagnosis of, and correct, errors in the Software. Spark will provide the following Maintenance Services remotely from Spark's premises:

i. Online Support

Spark's online support center is accessible via personalized login, through Spark's web site at www.sparkintegration.com.

Information available to Customer in the online support center may include but not be limited to:

• Product documentation on installation and libraries
• Technical bulletins
• Product Release Notes
• Knowledge bases

ii. Email Support.

Customer may submit a question or request via email (support@sparkintegration.com) and a Spark support specialist will respond by email or phone. Queries should be clear and detailed in order to ensure that customer gets the needed information as quickly as possible.

iii. Telephone Support.

Customer Contact may call (604) 736 6675 to speak directly with a Spark support specialist. Customer Contact must authenticate themselves each time they call by providing their company name and contact information.

Please consult the Spark web site, www.sparkintegration.com, for the most current phone number information.

b) Software Maintenance

Spark will provide Software Updates for Spark's Software products for the term of the Agreement.

Depending upon the product, Software Updates may include:

• Releases (defined as revisions and updates made generally available for commercial release by Spark).
• Maintenance Updates;
• Patches; or
• Fixes.

 Software Updates will be made available to Customer either

• Electronically via Spark's website or
• Via computer-readable media such as DVD-ROM (where appropriate as determined by Spark).

If Spark diagnoses that a reported problem in its Software is due to non-conformance to its applicable Customer documentation of a supported software version, then Spark will provide a Software Update for the reported non-conformance available at the time the problem is reported, provided that Customer is running the then-current version of the software or one version prior. If Customer is operating a software version released prior to the then-current version then Customer may, at its option and at no additional cost, update to the then-current version in order to acquire rights to any such known Software Update. If there is no such available Software Update, Spark will use commercially reasonable efforts to remedy such non-conformance, which may include a workaround or other temporary or permanent fix to the Software, provided that the reported problem can be verified and/or recreated by Spark on the then-current Software version. If the Software is not a currently supported version, and the nonconformance has been corrected in a supported version, Customer will be advised to upgrade in order to obtain assistance.

Spark will not incorporate Software Updates into versions of the Software prior to the then-current (or currently-supported) version. Spark does not represent or warrant that all non-conformities of the Software will be corrected. Spark reserves the right to incorporate corrections to Software non-conformances into future software versions.

Software maintenance services are not provided for third-party software applications.

4. CUSTOMER RESPONSIBILITIES

In connection with the Maintenance Services to be provided by Spark under this Policy, in addition to Customer responsibilities referenced elsewhere in this Policy, Customer is responsible for the following:

• Facilitating Spark's remote diagnostics capability by:
  • Ensuring that Internet access is provided
  • Providing Spark with all necessary authorizations for remote access by Spark to the Customer's network
  • Maintaining personnel with adequate technical expertise and training to assist the Spark technical support center in providing troubleshooting and problem resolution.
• Reasonably cooperating with Spark support personnel in the diagnosis of a problem
• Providing and facilitating the execution in a timely manner of the diagnostics, in accordance with the terms of Section 4.1.
• Maintaining an unmodified copy of all Software Updates and all related documentation, archival files and configuration files necessary to reinstall, reconfigure or reconstruct any lost, altered, or damaged software.
• Maintaining Spark and related product software at the release level that Spark supports, in accordance with Section 3(b) above.
• Making any improvements or changes required in order to install or use a Software Update.
• Ensuring that all products are used and maintained in accordance with the applicable product documentation.
• Registering in accordance with Spark instructions, all service, product and site information for all products to be supported under a Confirmed Order.

4.1 Required information

The following lists define the minimum sets of data to be collected at the time that a new issue is being reported to Spark:

For all Incidents:

• Name of the Spark Software
• Version number of the Spark Software
• Environment (Production System, staging or development)
• Severity level (see descriptions in the "Response Time" section)
• Affected areas (specific application or feature)
• Detailed description of the issue including description of business impact

For software errors:

• Description of troubleshooting that has already been completed
• Time line of the problem
• Recent upgrades/downgrades for hardware and/or software
• Logs
• Basic routing information
• TCP Dumps, other traces if available

In addition to above information, the Spark support organization may request additional information to assist in the resolution process.

Spark will treat this information as strictly confidential data.

Failure to comply with any of the requirements set forth in this Section 4 could affect Spark's ability to provide effective service, and Spark cannot be held responsible where its service is affected by the customer's failure to comply.

5. CONDITIONS AND EXCLUSIONS

5.1. ELIGIBILITY. To be eligible for Maintenance Services, (a) Customer must be up to date in all payments of applicable fees, and (b) software must be at the revision levels specified by Spark in accordance with Section 3(b) above regarding version support. Where it is possible to bring products that are not supported in accordance with the foregoing up to date in order to be eligible (e.g., by upgrading the software), Spark will assist the Customer to do so, subject to payment of its then-current standard rates for professional services.

5.2. INELIGIBILITY CIRCUMSTANCES Spark shall not be obligated to provide services in accordance with this Agreement with regard to any defect or nonconformity caused by: (a) the combination of Spark products with any third-party hardware or software (other than software approved by Spark), or the installation of any such software on the Spark product platform; (b) accident, neglect, misuse, improper programming, failure of electrical power, airconditioning, humidity control, transportation, or other than normal use or causes; (c) maintenance or repair by anyone other than Spark personnel or authorized Spark representatives; (d) modifications made to the products by anyone other than Spark personnel or authorized Spark representatives; or (d) failure to notify Spark or an authorized Spark support partner of the product defect during the term of this Agreement. If Customer requests service in any of the above cases, all services will be performed at Spark's then-current per-call or per-hour services rates.

5.3. THIRD PARTY SOFTWARE. Unless otherwise specified above (and then only to the extent specified above), third-party software is not eligible for Maintenance Services and is outside the scope of this Agreement.

5.4. RELOCATION OF PRODUCTS. Relocation of products covered under this Agreement is the sole responsibility of Customer and may result in adjustments to the price and response times. If products are relocated to another country or a remote location, continued coverage is subject to reasonable availability from Spark or a Spark authorized support provider.

5.5. NON-SPARK EQUIPMENT. This Agreement does not cover any services in relation to computers, electrical or network cabling external to the Spark equipment or maintenance of accessories, alterations, attachments or other devices not furnished by Spark.

5.6. HAZARDS. Customer agrees to inform Spark in advance if the furnishing of Maintenance Services will be in an environment that could pose a health or safety hazard to Spark's employees or subcontractors, and Spark reserve the right to refuse to provide Maintenance Support in such circumstances.

6. RENEWAL TERMS

Spark will not provide Maintenance Services under this Maintenance Policy following the expiration date of the License Agreement (the "Expiration Date"). In order to prevent a lapse in service, Spark must receive a Confirmed Order for renewal of service prior to the Expiration Date. By issuing a Confirmed Order in accordance with agreed prices, Customer will continue to receive Maintenance Services for the term indicated in the relevant License Agreement.

If an effective renewal is completed prior to the Expiration Date, provision of Maintenance Services will continue, uninterrupted, for the term indicated in the Confirmed Order.

If an effective renewal is not completed prior to the Expiration Date, Maintenance Services and all of Spark's obligations hereunder will cease upon the Expiration Date. The Customer may thereafter enter a new License Agreement in accordance with agreed prices, and Maintenance Services will be reactivated for the term indicated in the Confirmed Order, based on a term commencement date that is the day after the Expiration Date (regardless of the issue date of the License Agreement). In such event, the Customer will be obligated to ensure that hardware and software are brought up to the highest compatibility versions to ensure proper functionality.

7. SOFTWARE INCIDENT SEVERITY CLASSIFICATIONS AND SERVICE REQUEST RESOLUTION PROCESS.

The objective of the escalation and notification process is to:

• Ensure timely resolution of all customer situations
• Provide a means of properly prioritizing problems
• Provide management awareness of product and customer issues
• Ensure proper resource allocation to meet End User problem resolution requirements
• Provide assurances that Spark is focused on providing timely resolutions to technical issues that impact the End User's business operation.

7.1. Software Incident Severity Classifications and Response Times.

By selecting the proper Severity level, Spark can ensure that high priority issues receive immediate attention. Making the proper selection is very important to the way Spark processes incoming service requests. Improper selection may result in delays in the initial response time for critical situations. Please make this selection with extreme care.

Spark will use reasonable commercial efforts to provide its customers with technical advice and assistance in connection with their use of the Software according to the Severity and within the target response times stated below.

7.2 Priority Rules & Escalation Procedure

Response to support calls will be prioritized according to Severity. Calls for Level 1 Incidents will be prioritized above those from Level 2 Incidents which in turn will be prioritized above those from Level 3 Incidents and so on.

Subject to initial prioritization based on the Incident as described above, Spark handles all Customer support Service Requests on a first-in-first-out basis. Spark shall prioritize all Incidents according to their impact to the Customer using the severity definitions described in the table above. Spark reserves the right to upgrade or downgrade the severity of an Incident depending on developments during the resolution process. For example, if available, a temporary resolution may be provided to mitigate the material impact of a given Incident resulting in the reduction of the severity of a Service Request.

Spark receives input from the Customer on the impact of the issue on the Customer's normal business operations, and Spark sets the priority field to the appropriate level. These priorities will drive escalations outlined below. Spark has implemented business notification rules based on these priority definitions. It is extremely important to fully understand the true Business Impact of the issue and assign appropriate priority to a reported problem. Priority of an issue may change while a case is open.

8. GENERAL TERMS AND CONDITIONS

8.1. CHANGES. Spark reserves the rights to amend, modify, or withdraw any of its Maintenance Services without notice, provided such change shall not materially impact the scope of services provided to Customer prior to the end of the then current term.

8.2. SOFTWARE LICENSE. Customer's right to use Software Updates is governed by the terms and conditions of the Software License Agreement including but not limited to terms covering warranty, proprietary information, limitation of liability, termination and export.

8.3. PROPRIETARY INFORMATION.

8.3.1. Reservation of Rights. Spark, on behalf of itself and its suppliers, reserves all proprietary rights in and to (i) all designs, engineering details, and other data pertaining to software and other Spark products, (ii) all works of authorship, computer programs, fixes, updates (but not Customer's own proprietary programs), discoveries, inventions, patents, know-how and techniques arising out of work done wholly or in part by Spark or its subcontractors in connection with this Agreement, and (iii) any and all software code or products developed as a result of such work. The performance by Spark of Maintenance Services shall not be deemed a work-for-hire but shall instead be subject to this section.

8.3.2. Administrative Procedures. Customer is solely responsible for the security of its own proprietary and confidential information and for maintaining adequate procedures apart from the products covered under an order for Maintenance Services to reconstruct lost or altered files, data, or programs.

9. GENERAL

The relationship of Spark and Customer is that of independent contractors. If any provision of this Maintenance Policy is held to be invalid or unenforceable, the remainder of the provisions shall remain in full force and effect. Spark and Customer agree to comply with the provisions of all applicable laws, ordinances, regulations, and codes. This Maintenance Policy (along with Spark's applicable License Agreement accompanying the product) constitute the complete and exclusive understanding of the parties, and supersede all prior discussions, representations and agreements regarding the subject matter hereof. In the event of a conflict or variance between any License Agreement and this Maintenance Policy, the License Agreement shall prevail. No amendment, modification or waiver of this Maintenance Policy will be effective unless approved in writing by the duly authorized representatives of the parties. Neither party is liable for its failure or delay to perform its obligations under this Maintenance Policy due to strikes, wars, revolutions, acts of terrorism, fires, floods, explosions, earthquakes, labor shortages, government regulations, or other causes beyond its reasonable control. This Maintenance Policy may not be assigned by Customer without prior written permission from Spark. Any attempt by Customer to assign any right, or delegate any duty or obligation which arises under this Agreement without such permission will be void.