SOFTWARE MAINTENANCE AGREEMENT
This Agreement ("Agreement") is made and entered into and effective
this 25th day of September, 1998 by and between TIBCO Finance Technology Inc.,
having its principal place of business at 3165 Porter Drive, Palo Alto
California 94304, USA ("TIBCO") and Instinct Corporation, having its principal
place of business at 850 Third Ave., New York, NY 10022 ("Client").
WHEREAS, TIBCO has provided to Client certain software as specified in
Exhibit A of this Agreement ("Covered Software") pursuant to a software license
agreement between the parties (the "License Agreement"); and
WHEREAS, Client wishes to have TIBCO provide maintenance and support
services pursuant to the terms and conditions of this Agreement;
NOW, THEREFORE, the parties agree as follows:
I. INCORPORATION OF DOCUMENTS
The following documents are attached hereto and, by this reference,
incorporated in this Agreement:
Exhibit A Covered Sites, Software & Configuration
Exhibit B Authorized Client Contacts
Exhibit C Services and Fees
During the term of this Agreement, TIBCO agrees to provide maintenance
and support services for the Covered Software operating at the site(s) and on
the hardware configurations listed in Exhibit A ("Maintenance Services"). Unless
specifically listed in Exhibit A, Section II, Covered Software does not include
hardware vendor operating systems and other system software, Client-developed
software, and third-party software (except any third party software embedded in
the Covered Software).
III. DESCRIPTION OF MAINTENANCE SERVICES
A. Support Services. During the term of this Agreement, TIBCO will
provide the services described herein so as to maintain the Covered Software in
good working order, keeping it free from material defects so that the Covered
Software shall function properly and in accordance with the accepted level of
performance as set forth in the License Agreement.
(1) Service Response. TIBCO will make available to Client a
telephone number (the "Support Center HOTLINE") for Client to call requesting
service of the Covered Software. The Support Center HOTLINE operates during
business hours, 9:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal
holidays. Extended coverage is available for an additional fee. The HOTLINE can
also be used to notify TIBCO of problems associated with the Covered Software
and related documentation.
98-9-14 TIBCO Maintenance Agreement Page 1
B. Remedial Support. Upon receipt by TIBCO of notice from Client
through the Support Center HOTLINE of an error, defect, malfunction or
nonconformity in the Covered Software, TIBCO shall respond as provided below:
Severity 1: Produces an emergency situation in which the Covered
Software is inoperable, produces incorrect results, or fails
RESPONSE: TIBCO will provide a response by a qualified member of
its staff to begin to diagnose and to correct a Severity 1
problem as soon as reasonably possible, but in any event a
response via telephone will be provided within one (1) hour.
TIBCO will continue to provide best efforts to resolve Severity
1 problems in less than forty-eight (48) hours. The resolution
will be delivered to Client as a work-around or as an emergency
software fix. If TIBCO delivers an acceptable work-around, the
severity classification will drop to a Severity 2.
Severity 2: Produces a detrimental situation in which performance
(throughput or response) of the Covered Software degrades substantially
under reasonable loads, such that there is a severe impact on use; the
Covered Software is usable, but materially incomplete; one or more
mainline functions or commands is inoperable; or the use is otherwise
RESPONSE: TIBCO will provide a response by a qualified member
of its staff to begin to diagnose and to correct a Severity 2
problem as soon as reasonable possible, but in any event a
response via telephone will be provided within four (4) hours.
TIBCO will exercise best efforts to resolve Severity 2
problems within five (5) days. The resolution will be
delivered to Client in the same format as Severity 1 problems.
If TIBCO delivers an acceptable work-around for a Severity 2
problem, the severity classification will drop to a Severity
Severity 3: Produces an inconvenient situation in which the Covered
Software is usable, but does not provide a function in the most
convenient or expeditious manner, and the user suffers little or no
RESPONSE: TIBCO will exercise best efforts to resolve Severity
3 problems in the next maintenance release.
Severity 4: Produces a noticeable situation in which the use is