System Management Services Agreement

THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO NETWORK HARDWARE AND SOFTWARE SERVICES ("SERVICES") PROVIDED BY THE BUSINESS ASSISTANCE CENTER ("BAC") OF GATEWAY COMPANIES, INC. ("GATEWAY"). THE SERVICES ARE AVAILABLE FOR A SEPARATE FEE FOR NETWORKS CONSISTING OF ONE OR MORE GATEWAY SERVERS CONNECTED WITH GATEWAY WORKSTATIONS, AND APPROVED THIRD-PARTY HARDWARE (COLLECTIVELY, "HARDWARE"), OPERATING ON A MICROSOFTÒ WINDOWS NT OR NOVELLÒ NETWARE OPERATING SYSTEM ("NOS"), AND USING APPROVED APPLICATIONS SOFTWARE (COLLECTIVELY, "SOFTWARE"). THIS AGREEMENT SUPPLEMENTS, BUT DOES NOT SUPERSEDE, THE GATEWAYÔ LIMITED WARRANTY TERMS AND CONDITIONS AGREEMENT THAT SHIPPED WITH YOUR GATEWAY HARDWARE (A "PRODUCT AGREEMENT"). EXCEPT AS SPECIFIED IN SECTION 2 BELOW, THE TERMS AND CONDITIONS OF THE PRODUCT AGREEMENT REMAIN IN FULL FORCE AND EFFECT.

1. AVAILABILITY OF SERVICES. You can obtain the Services by entering into an annual contract with Gateway or by contacting the Gateway BAC on a per occurrence basis. Confirmation of your purchase of an annual contract and the price of the annual contract will be stated on your purchase receipt or invoice. If you do not enter into an annual contract, you may obtain Services on a per occurrence basis. If you obtain Services on a per occurrence basis, you agree to pay the per occurrence fee that Gateway charges at the time you request Services. EVEN IF YOU DO NOT ENTER INTO AN ANNUAL CONTRACT WITH GATEWAY, YOU AGREE THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO GATEWAY’S PROVISION OF SERVICES EACH TIME YOU CONTACT THE BAC ON A PER OCCURANCE BASIS. Gateway will provide Services for the network configuration (including its specific Hardware and Software components) described by you and approved by Gateway. Gateway reserves the right to evaluate your network configuration before it enters into an annual contract with you or provides Services to you on a per occurrence basis.

1. If you enter into an annual contract with Gateway, you will be entitled to obtain Services for one year beginning on the date on which your Gateway Hardware is shipped to you or the date stated on your purchase receipt or invoice, whichever is later. You and Gateway may agree to enter into successive annual contracts during the 30-day period before the end of each annual contract. Gateway may change the Services, terms and conditions and fees for the Services under this Agreement at any time, but if you have entered into an annual contract the changes will not be effective during the remainder of the annual period.
2. If you enter into an annual contract with Gateway, you may terminate it within 30 days after the date you receive your Gateway Hardware, and Gateway will refund any fees you paid for the annual contract.
3. If you enter into an annual contract with Gateway, Gateway may terminate it at any time, with or without cause, upon thirty (30) days’ written notice to you. Should Gateway cancel an annual contract without cause, Gateway shall pro-rate the remainder of your annual contract term and reimburse you accordingly. Gateway may stop providing Services on a per occurrence basis at any time and from time to time without notice.
4. Gateway may terminate this Agreement upon ten (10) days’ notice to you if you fail to perform any of your material obligations under this Agreement, including a failure to notify Gateway in accordance with Section 3.H below before making any change to any supported Hardware or Software. If Gateway terminates this Agreement pursuant to this Section 1.D, Gateway shall have no obligation to reimburse you for any part of the fee you paid for your annual contract.
5. You may access Services through the contact persons you designate in accordance with Section 3.C below. Gateway may issue you a personal identification number (PIN) that will serve as the means by which Gateway determines that a person contacting Gateway for Services is authorized to request Services. You are responsible for maintaining the security of your PIN.

1. DESCRIPTION OF THE SERVICES. Gateway provides Services 24 hours a day, seven (7) days a week via telephone and email. Gateway also may provide Services via remote access to your network. Services are available to Clients located in the United States, Puerto Rico, and Canada. The scope of work performed under this Agreement may only be modified with the express written approval of Gateway. Gateway undertakes to use commercial best efforts to resolve your issues. However, Gateway does not guarantee that it will be able to resolve every issue.

1. PRODUCT WARRANTY SERVICES. Gateway will provide warranty service for any Gateway Hardware in your network configuration under the terms of the applicable Product Agreement. If a BAC technician determines, in his or her sole discretion, that on-site service is required, he or she can arrange for such service under the terms of the On-Site Services Agreement ("On-Site Agreement") that shipped with your Gateway Hardware. In receiving warranty and on-site service, you must follow the procedures described in those agreements, except that you can initially contact Gateway’s BAC for support.
2. NOS SUPPORT. Gateway will assist you with (i) installation of the Gateway Server Solution and NOS software that was delivered with your Hardware; (ii) configuration of the NOS and Network Solution software so that they work with the Hardware; (iii) setup of the NOS and Network Solution software so that they are fully integrated with the Hardware, and (iv) technical troubleshooting with issues associated with the NOS software, such as assistance with NOS error messages. Under an annual contract with Gateway, Gateway will provide NOS support beyond the thirty (30) day period described in the Product Agreement for your Gateway servers.
3. SOFTWARE SUPPORT. Gateway will assist you with installation, configuration and setup of application Software products, including the installation and updating of drivers and other files. In addition, under an annual contract, Gateway will provide support for the Application Server/Turnkey Solution software delivered to you by Gateway throughout the term of this Agreement.
4. NETWORK SUPPORT. Gateway will assist you with all software utility occurrences (non-tutorial) that arise from the Application Server/ Turnkey Solution software included in the network configuration and Solution/Network Administration occurrences pertaining to NOS, Application Server and/or the Gateway Network Solution software.

5. ANNUAL NETWORK CONSULTATION. Gateway will provide you with an annual assessment of your NOS (one per site, unless otherwise agreed upon by Gateway), along with advice on implementing hardware and software upgrades and revisions that will help you obtain maximum performance from your network configuration. Besides consulting with you over the phone, Gateway will send you a hard-copy report of the analysis and the conclusions drawn from the consultation.

1. CLIENT RESPONSIBILITIES. For all Services described in this Agreement, you are responsible for the obligations specified in this Section 3. You acknowledge and agree that Gateway's provision of Services is contingent on your satisfaction of these obligations. GATEWAY, ITS EMPLOYEES, AGENTS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY DELAY OR DAMAGES YOU INCUR IF YOU FAIL TO PERFORM ANY OF THE OBLIGATIONS DESCRIBED BELOW. Your responsibilities include:

1. providing a suitable installation and operating location for the Hardware according to instructions furnished by the manufacturer, which location, at a minimum, is designed to (a) support the size and weight of the Hardware; (b) provide sufficient space, electrical power, and, if applicable, network cable for the Hardware, (c) contain the appropriate number and types of electrical outlets, analog phone jacks, and network cables within reach of the Hardware, (d) avoid the possibility of damage caused by impact with other objects, falls, spilled liquids or immersion in liquids, or misuse, (e) allow for continuous operation of any diagnostic software tools and (f) permit Gateway to remove software tools for any reason (a list of the specific requirements for each item of Gateway Hardware is available from Gateway);
2. (i) identifying, documenting, and reporting each problem with Hardware or Software that requires Service, (ii) supplying Gateway with all documentation and assistance necessary to demonstrate and allow Gateway to diagnose the problem, and (iii) for Software problems, promptly install each solution to such problem provided by Gateway;
3. designating a primary and secondary employee as contacts who (i) will direct all requests for information and maintenance to Gateway, (ii) are familiar with and able to perform diagnostic tests for operation of the Hardware and Software, and (iii) will provide Gateway with assistance and information necessary to demonstrate, diagnose and correct malfunctions (you may designate additional contacts to Gateway for a separate fee);
4. performing appropriate backup, removal and protection of any software programs, databases and removable storage media and maintaining a procedure external to the Hardware for reconstruction of lost or altered files, data, or programs before receiving Services hereunder; (NEITHER GATEWAY NOR ITS CONTRACTORS SHALL BE RESPONSIBLE FOR LOSS OF ANY CLIENT DATA);
5. if requested by a Gateway technician, removing any third-party, non-Gateway products not supported by Gateway under this Agreement;
6. installing and maintaining a direct, dedicated telephone line that does not pass through a switch before connecting to your network to enable Gateway to access your network to perform Services remotely;
7. providing appropriate configuration information in a designated file, or other appropriate electronic documentation, for each item of Hardware and Software included in your network configuration;
8. notifying Gateway in writing at least thirty (30) days before making a change in the physical address, configuration, or operating environment of any item of Hardware and Software included in your network configuration; and
9. performing any other obligations reasonably required by Gateway in order to provide the Services pursuant to this Agreement.

In addition, to reduce the risk of electrical damage to your Hardware caused by power fluctuations, Gateway encourages the use of an uninterrupted power supply, which can be purchased from Gateway.

1. REMOTE DIAGNOSTIC SERVICES. You agree that Gateway has the right to access your network and all files contained in it from time to time for the purpose of providing Services. You may terminate Gateway’s right to access your network by providing written notice to Gateway, and you may temporarily suspend Gateway’s access to your network or to specific files through the capabilities provided by the software tools used by Gateway.

    

2. SERVICE LIMITATIONS.

1. Gateway’s obligation to provide Services will not apply if any adjustment, repair, or parts replacement is required because of (i) accident, neglect, misuse, failure of electrical power, failure to provide appropriate environmental conditions, relocation of Hardware, or causes other than ordinary use (unless caused by Gateway or Gateway’s authorized representative); (ii) repair or alteration, or attempted repair or alteration, of any item of Hardware or Software by any party other than Gateway (unless authorized in writing in advance by Gateway); (iii) failure caused by a product that Gateway does not support under this Agreement; (iv) the connection of another machine or device to Hardware which makes the Services impractical or which has caused damage to such Hardware; (v) the connection of another machine, device or other product to your network without notifying Gateway as required under this Agreement; (vi) damage or destruction caused by natural or man-made acts or disasters; or (vii) failure of any Hardware or Software correctly to receive, process, and provide date data within and between the twentieth and twenty-first centuries.
2. The Services do not include, and Gateway does not provide cosmetic repairs; refurbishment; consumables, supplies or accessories; accessory changes; attachment of additional devices; or the installation of network cabling.
3. Software tools, diagnostic software, and other materials used by Gateway in the performance of the Services remain the exclusive property of Gateway or its licensors. You may not (i) copy or use such material or (ii) make such material or any resultant diagnosis or system management data available to other parties without Gateway’s prior written consent.

1. SERVICE WARRANTY; DISCLAIMER OF WARRANTIES. Gateway warrants only that the Services described in this Agreement shall be provided in a professional and workmanlike manner. ALL OTHER EXPRESS WARRANTIES ARE HEREBY DISCLAIMED. ANY IMPLIED WARRANTIES ARE LIMITED TO THE TERM OF THIS AGREEMENT. NO INFORMATION OR ADVICE (WRITTEN OR ORAL) PROVIDED TO YOU BY GATEWAY, ITS AFFILIATES AND AGENTS, OR ITS OR THEIR EMPLOYEES WILL CREATE A WARRANTY BY GATEWAY OR INCREASE THE SCOPE OF THE WARRANTY SET FORTH IN THIS SECTION 6. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
2. LIMITATION OF REMEDIES AND LIABILITY.

1. Any action against Gateway must be brought within twelve (12) months after the cause arises or the action shall be deemed waived. For purposes of this subsection, "Gateway" includes Gateway, its affiliates, employees, agents, subcontractors, and suppliers. Gateway is not liable for any claim made by a third party or made by you to a third party.
2. ANY LIABILITY OF GATEWAY AND ITS AFFILIATES, AGENTS, SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT IS EXPRESSLY LIMITED TO THE FEES YOU HAVE PAID FOR THE SERVICE GIVING RISE TO THE CLAIM. YOUR SOLE REMEDY AGAINST GATEWAY AND ITS AFFILIATES, AGENTS, SUPPLIERS AND LICENSORS IN ANY DISPUTE UNDER THIS AGREEMENT SHALL BE TO SEEK RECOVERY OF THE AMOUNTS YOU HAVE PAID, UPON THE PAYMENT OF WHICH GATEWAY AND ITS AFFILIATES, AGENTS, SUPPLIERS AND LICENSORS SHALL BE RELEASED FROM AND DISCHARGED OF ALL FURTHER OBLIGATIONS AND LIABILITY TO YOU. IN NO EVENT SHALL GATEWAYOR ITS AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR REVENUE, ECONOMIC LOSS, LOSS OF DATA, LOSS OF USE OF

ANY PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, YOUR TIME, THE CLAIMS OF THIRD PARTIES, AND INJURY TO PROPERTY, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING BUT NOT LIMITED TO, BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY, AND EVEN IF GATEWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

1. CONFIDENTIAL AND PROPRIETARY INFORMATION.

1. If either party discloses any of its confidential and proprietary information ("Confidential Information") to the other party, the receiving party will keep all Confidential Information in confidence and will not use or disclose any item of Confidential Information to any person other than its employees, agents or contractors who need to know the same in the performance of their duties. In addition, the receiving party will not use any item of Confidential Information except to perform its obligations under this Agreement. For purposes of this Agreement, Confidential Information shall mean any information designated by a party as confidential or information the confidentiality of which is apparent under the circumstances. Such information shall include but not be limited to products, components, types of systems, new product development plans, technical information, data, formulas, patterns, compilations, programs, devices, methods, techniques, marketing plans, business procedures, customer and supplier lists, agreements with any supplements, techniques or know-how, processes, trade secrets or other confidential, proprietary or intellectual property information. The receiving party will protect and maintain the confidentiality of all Confidential Information with the same degree of care as it employs to protect its own Confidential Information of a similar nature, but at least with a reasonable degree of care, including requiring agents and contractors to sign a non-disclosure agreement consistent with the terms and conditions of this Section 8. The receiving party will be liable to the disclosing party for any non-compliance by its agents or contractors to the same extent it would be liable for non-compliance by its employees.
2. You recognize and agree that each software tool used by the Gateway in providing the Services (i) is considered by Gateway and its licensors to be a trade secret, (ii) is furnished by Gateway to you in confidence, and (iii) contains proprietary and Confidential Information, and that, accordingly, such Software constitutes Confidential Information of Gateway under this Section 8.
3. Confidential Information does not include any data or information which (i) was rightfully in the receiving party’s lawful possession prior to the submission thereof by the disclosing party, (ii) is later lawfully obtained by the receiving party from a third party under no obligation of secrecy, (iii) is independently developed by this receiving party without reference to the Confidential Information of the other party, or (iv) is, or later becomes, available to the public thorough no act or failure to act by the receiving party.

1. SOFTWARE LICENSE. As deemed necessary by Gateway during the term of any Service Agreement, Gateway may grant you a license to use third party software delivered by Gateway according to the applicable licensor’s license terms, solely for facilitating Gateway’s provision of the Services contemplated by this Agreement. Gateway’s licensors shall retain all right, title, and interest, including all copyright and other intellectual property rights, in and to all such software licensed to you under this Agreement. Unless otherwise specified in the licensor’s license terms, you shall not reverse engineer, reverse compile, disassemble or perform any other procedures to reveal the source code of any such software.
2. GOVERNING LAW. This Agreement is governed by the laws of the State of South Dakota, without giving effect to conflicts of law rules.
3. DISPUTE RESOLUTION. Any dispute or controversy arising out of or relating to this Agreement, its interpretation or any related purchase will be resolved exclusively and finally by arbitration under the rules of the American Arbitration Association (AAA). You may file for arbitration at any AAA location in the United States upon the payment of any applicable filing fee. The arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute or controversy between you and Gateway. The arbitration shall be held in any mutually agreed upon location in person, by telephone, or online. Any decision rendered in such arbitration proceedings will be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction. The arbitrator shall not award either party special, exemplary, consequential, punitive, incidental or indirect damages, or attorneys’ fees. The parties will share the costs of arbitration, (including the arbitrator’s fees, if any) in the proportion that the final award bears to the amount of the initial claim.
4. SEVERABILITY. If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of this Agreement.
5. GENERAL. You may not assign this Agreement without Gateway's prior written consent. Gateway may impose a transfer fee if it elects to consent to an assignment of this Agreement. In case of any inconsistency between this Agreement and any other agreement with regard to the provision of the Services for your Gateway Hardware, this Agreement shall take precedence.

MAN US SYSTEM MGT SERVICE R0 2/99

8504186