US2008 17331789 8

IN THE STATE-WIDE BUSINESS COURT STATE OF GEORGIA

COX COMMUNICATIONS, INC.,

Plaintiff,

v.

MICRO FOCUS (US), INC.,

Defendant.

) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. ______________

COMPLAINT FOR DECLARATORY JUDGMENT

Cox Communications, Inc. (“Cox”) files this suit against Micro Focus (US), Inc. (“Micro

Focus”):

NATURE OF THE ACTION

1. In or around December 2008, Cox and Hewlett Packard Company (“HP”) entered

into a Customer Agreement (the “2008 Agreement”) pursuant to which Cox licensed software

applications for use in managing and monitoring Cox’s internal IT systems. A true and correct

copy of the 2008 Agreement is attached hereto as Exhibit A. Cox and HP performed under the

terms of the 2008 Agreement for nearly ten years without dispute.

2. In or around September 2017, Micro Focus International plc, Micro Focus (US),

Inc.’s parent company, acquired a portion of HP’s software assets in an $8.8 billion transaction.

By virtue of the acquisition, Micro Focus assumed HP’s rights and obligations under the 2008

Agreement.

3. In March 2018, Micro Focus exercised its audit rights under the 2008 Agreement.

CLERK OF THE GEORGIASTATE-WIDE BUSINESS COURT

20-GSBC-0003JUDGE WALTER W. DAVIS

AUG 20, 2020 09:45 AM

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4. In or around July 2018, Micro Focus, without notice to Cox, purportedly posted to

its website a document entitled, “Micro Focus Business Support Agreement” (the “2018 Business

Support Agreement”).

5. Cox was not aware of the 2018 Business Support Agreement until August 2019.

Cox never consented to the terms of the 2018 Business Support Agreement.

6. Based upon the audit results and, in part, on the terms of its 2018 Business Support

Agreement, Micro Focus contends that Cox purportedly has failed to comply fully with licensing

obligations. In addition, Micro Focus claims that the 2018 Business Support Agreement modifies

the terms of the 2008 Agreement and that Cox purportedly owes Micro Focus approximately

$11,000,000.

PARTIES

7. Plaintiff Cox is a Delaware corporation with its principal place of business at 6205-

B Peachtree Dunwoody Road, Atlanta, Georgia 30308.

8. Defendant Micro Focus is a Delaware corporation with its principal place of

business at 700 King Farm Boulevard, Suite 440, Rockville, Maryland 20850. Micro Focus can

be served through its registered agent, C.T. Corporation System, 289 Culver Street, Lawrenceville,

Georgia 30046.

JURISDICTION AND VENUE

9. This action for declaratory relief arises under O.C.G.A. § 9-4-2(a), which expressly

states that the Georgia State-wide Business Court shall have the power to declare the rights of any

interested party seeking such a declaration.

10. This Court has subject matter jurisdiction over this action pursuant to O.C.G.A. §

15-5A-3(a)(4), which permits the Georgia State-wide Business Court to exercise powers given to

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the Court by law and pursuant to O.C.G.A. § 15-5A-3(a)(1)(A)(xvi), which permits the Georgia

State-wide Business Court to hear claims arising from technology licensing agreements.

11. This Court has personal jurisdiction over Micro Focus because Micro Focus is

authorized to do business in the State of Georgia, maintains a registered agent in the state of

Georgia, maintains an office and transacts business in Fulton County, Georgia, and because

representatives of Micro Focus met with Cox representatives in Georgia in connection with the

performance of the 2008 Agreement.

12. Venue is proper in this Court pursuant to O.C.G.A. § 15-5A-2(e)(1) and O.C.G.A.

§ 14-2-510(b)(2) because Micro Focus is authorized to transact business in Georgia, the contract

to be enforced is to be performed in Fulton County, Georgia, and Micro Focus has an office and

transacts business in Fulton County, Georgia.

FACTUAL BACKGROUND

13. Cox Communications provides premier provider telecommunications, digital cable

television, and home automation services to 6.2 million customers in the United States. Cox relies

upon third party enterprise software to assist in monitoring, managing, and maintaining its internal

IT systems, which are critical to providing quality services to its end customers.

14. From 2008 through September 2017, a division of Hewlett Packard Company

developed, marketed, and licensed enterprise software solutions, and related products, designed

for managing IT systems.

15. Micro Focus is a software and consulting firm. Micro Focus, or a Micro Focus

affiliate, acquired a portion of HP’s software assets in or around September 2017.

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THE 2008 AGREEMENT

16. On or about December 16, 2008, Cox and HP entered into the 2008 Agreement,

which sets forth the terms that govern the licensing of software and the provision of services to

Cox by HP. See generally Ex. A.

17. Section A(15)(f) of the 2008 Agreement states that the “Agreement shall be

governed by, interpreted and construed in accordance with the laws of the State of Georgia,

excluding rules as to choice and conflict of law and, where permitted, the parties waive their right

to a jury.” Ex. A, Governing Law, 2008 Agreement, § A(15)(f).

18. Section A(15)(h) of the 2008 Agreement provides that the “Agreement may be

modified, supplemented or changed only by an agreement in writing which makes specific

reference to this Agreement and which is signed by the duly authorized representatives of both of

the parties.” Ex. A, Entire Agreement, 2008 Agreement, § A(15)(h).

19. HP and Cox agreed that, in the event of conflicting terms, the “documents will

apply in the following descending order of precedence: 1. Transaction Documents consisting of

license terms or limited warranty statements delivered or otherwise made available to Customer

with Products; 2. the sections of this Agreement; [and] 3. all other Transaction Documents.” Ex.

A, Order of Precedence, 2008 Agreement, § A(15)(j).

20. Under the terms of the 2008 Agreement, Transaction Documents means:

[1] an accepted Customer order (excluding pre-printed terms) and in relation to that order valid HP quotations, license terms delivered or otherwise made available to Customer with Software, HP published technical data sheets or service descriptions, attachments, HP limited warranty statements delivered with or otherwise made available to Customer with Products, and [2] mutually executed Statements of Work, all as provided by HP, or [3] other mutually executed documents that reference this Agreement.

Ex. A, Definitions, 2008 Agreement, § A(1)(p).

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21. HP and Cox agreed in Section A(9)(b) of the 2008 Agreement that “End User Data

is and shall remain the property of the Customer. HP employees, agents, and contractors shall not

collect End User Data unless necessary to perform HP’s obligations under the Agreement.”

22. Section B(1) of the 2008 Agreement provides that “unless otherwise specified in

the Transaction Documents, ‘Use’ means to install, store, load, execute, and display one copy of

the Software on one device at a time for Customer's internal business purposes.” Ex. A, License

Grant, 2008 Agreement, § B(1).

23. Section C(1)(c) of the 2008 Agreement provides, in relevant part, that “Customer

may cancel Support orders or delete Products from Support upon thirty days written notice, unless

otherwise stated in a Transaction Document. . . . HP will refund Customer a pro-rata amount for

the unused prepared Support, less any early termination fees or subject to any restrictions set forth

in a Transaction Document.” Ex. A, Cancellation, 2008 Agreement, § C(1)(c).

THE HP ENTERPRISE LICENSING SCHEDULE

24. On or about November 12, 2009, and subject to the terms of the 2008 Agreement,

HP and Cox entered into the HP Enterprise Licensing Schedule (the “Enterprise License”). A true

and correct copy of the Enterprise License is attached hereto as Exhibit B.

25. The Enterprise License “continue[d] for a period of three (3) years thereafter[.]”

Ex. B, Term, Enterprise License, § A.1.

26. The “Enterprise License Terms” concerning the “Scope of Support” state, in

relevant part, that “Support services purchased under this Schedule will only be provided for

Software Licenses purchased under this Schedule.” Ex. B, Enterprise License, § A.2.b. The Scope

of Support provision also states that “[u]pon termination, Customer shall only have the right to

Use the Software Licenses Activated in accordance with 2.d.5 of th[e] Schedule.” Id.

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27. Section A.2.c.1 of the Enterprise License provides that “[d]uring the Term,

Customer is entitled to Activate any number of licenses of the Eligible Software, provided that all

Fixed Software licenses shall be limited to a maximum of the corresponding quantities specified

in the Software Table[.]” Ex. B, Unlimited Activation, Enterprise License § A.2.c.1. HP and Cox

also agreed that “[u]pon expiration of the Term, (i) Customer shall have a perpetual fully-paid

license to Use such Eligible Software, in the quantities in Use at the end of the Term, and (ii)

Customer will submit a written report to HP specifying the quantity of each Eligible Software

license Activated by Customer during the Term (the ‘Activation Report’).” Id.

28. Section A.2.c.2 of the Enterprise License provides that “[w]ithin one hundred

eighty (180) days following expiration of the Term, with at least ten (10) days advance written

notice and subject to Customer’s reasonable security procedures, HP shall have the right to audit

the Use and Activation of the Eligible Software by Customer.” Ex. B, Audit, Enterprise License,

§ A.2.c.2.

29. Section A.2.d.2 of the Enterprise License permitted Cox to “Activate licenses for

Eligible Software using the HP Software Activation Web Site” during the Term of the Enterprise

License. Ex. B, Enterprise License, § A.2.d.2. Under the terms of the Enterprise License, Cox

was “responsible to Activate all Eligible Software licenses on the Software Activation Web Site

during the Term.” Id., § A.2.d.4. In addition, Cox “agree[d] to relinquish its rights to any licenses

of Eligible Software it fail[ed] to Activate during the Term.” Id.

30. Section A.2.d.5 of the Enterprise License provides that Cox’s “right to Activate

Eligible Software licenses shall be limited to copies actually put in production Use during the

term.” Ex. B, Enterprise License, § A.2.d.5.

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31. The Enterprise License includes a conflict provision that provides that the

“[Enterprise License] and the Agreement constitute the entire and exclusive agreement between

the Parties regarding the subject matter hereof, and supersede all proposals and prior agreements,

oral or written, and all other communications between them relating to the subject matter herein.”

Ex. B, Enterprise License, § A.6.

32. Under the Enterprise License, at the end of the three-year term, Cox obtained

perpetual fully-paid licenses to use Activated software that was in Use at the end of the Term as

disclosed by Cox in a final Activation Report.

THE LICENSED SOFTWARE

33. Subject to the terms of the 2008 Agreement, Cox licensed, among other software,

HP’s Application Lifecycle Management Center, Business Availability Center, Configuration

Management (including Universal Discovery and Universal Software Management Database),

LoadRunner, and Project and Portfolio Management (collectively, the “Licensed Software”).

34. HP’s Application Lifecycle Management Center provided Cox requirements

management, test planning and functional testing, performance testing, developer management,

and defect management in connection with Cox’s internal IT projects.

35. HP’s Business Availability Center allows proactive management of physical and

logical infrastructure for Cox’s data center.

36. HP’s Configuration Management, including the Universal Discovery and Universal

Software Management Database, allows Cox to monitor and control its hybrid IT environment in

real-time with a discovery and change management database.

37. HP’s LoadRunner software allowed for application testing and measures system

behavior and performance of Cox’s IT systems.

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38. HP’s Project and Portfolio Management enables Cox to manage top down and

bottom up planning for its IT portfolio, programs, and projects.

39. In addition to the Licensed Software, Cox obtained licenses for five other HP

software modules, including Application Performance Manager, Functional Testing Center, IT

Business Analytics Center, and Service and Operations Bridge Center.

40. Between 2009 and 2017, Cox periodically provided HP with notice that Cox

intended to discontinue use of certain licensed software. Such software was rendered dormant by

HP, and Cox was thereby no longer responsible for paying license, maintenance, or support fees

for the dormant software.

41. At least two HP software applications licensed by Cox became dormant, either in

whole or in part, between 2009 and 2017, including HP’s Application Performance Manager and

HP’s Service & Operations Bridge Center.

END OF TERM CERTIFICATION

42. The Enterprise License expired by its terms on or about November 12, 2012.

43. On or about December 31, 2012, consistent with its obligations under Section

A.2.c.1(i) of the Enterprise License, Cox executed an End of Term Certification in connection with

the Enterprise License. A true and correct copy of the End of Term Certification is attached hereto

as Exhibit C. The End of Term Certification sets forth the product number, number of Activated

licenses, the number of licenses in production use, and the location of the deployments for all

Eligible Software that Cox Activated during the term of the Enterprise License.

44. Section A.2.c.2 of the Enterprise License permitted HP to audit Cox’s End of Term

Certification “[w]ithin one hundred eighty (180) days following expiration of the Term [and] with

at least ten (10) days advance written notice[.]” Ex. B, Enterprise License § A.2.c.2.

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45. HP did not exercise its right to audit the End of Term Certification. Consequently,

Cox was granted perpetual fully-paid licenses to use all Activated software that was in Use at the

end of the Term as disclosed by Cox in the End of Term Certification.

CONTINUED PERFORMANCE UNDER THE 2008 AGREEMENT

46. Following the expiration of the Enterprise License, Cox and HP continued to

perform under the terms of the 2008 Agreement.

47. Among other things, HP continued to provide “strategic guidance, analysis, and

configuration of an integration of Cox’s Oracle ERP application and Cox’s Development, Test,

and Production instances to [Project Portfolio Management] PPM Version 8.0.”

48. For nearly ten years, Cox and HP performed under the 2008 Agreement without

disagreement.

MICRO FOCUS ACQUIRES HP AND EXERCISES ITS AUDIT RIGHT

49. On or about September 1, 2017, Micro Focus International plc, Micro Focus (US),

Inc. parent company, acquired a portion of HP’s software assets in an $8.8 billion transaction.

Micro Focus thereby assumed all rights and obligations of HP under the 2008 Agreement.

50. In March 2018, Micro Focus exercised its audit rights pursuant to Section A(15)(1),

Records and Audit, of the 2008 Agreement. Cox complied fully with requests for information in

connection with the audit.

51. Following the completion of its audit, Micro Focus concluded that Cox purportedly

has failed to comply with the license obligations for the Application Lifecycle Management

Center, Business Availability Center, Configuration Management (including Universal Discovery

and Universal Software Management Database), LoadRunner, and Project and Portfolio

Management software.

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THE 2018 MICRO FOCUS BUSINESS SUPPORT AGREEMENT

52. In or around July 2018, Micro Focus, without notice to Cox, purportedly posted to

its website a document entitled, “Micro Focus Business Support Agreement.” A true and correct

copy of the 2018 Business Support Agreement is attached hereto as Exhibit D.

53. Micro Focus claims that the 2018 Business Support Agreement modifies the terms

of the 2008 Agreement. Cox was unaware of the 2018 Business Support Agreement until August

2019 and Cox did not assent to the terms of the 2018 Business Support Agreement.

54. The 2018 Business Support Agreement provides, in relevant part, that “[t]h[e]

Support Agreement applies to all Software products for which Support commences on or after 15

January 2018.” Ex. D at ¶ 1.

55. The Business Support Agreement also provides that “th[e] Support Agreement will

commence on the date when Micro Focus receives Customer’s order for the Support, or, if later,

upon delivery (either via physical shipment or making the Software available for download) to

Customer of the Software.” Ex. D, Term and Termination, Business Support Agreement § 15.

56. Support for all HP software licensed by Cox commenced in or around 2009 and in

accordance with the terms of the Enterprise License.

57. Cox has not transacted directly with Micro Focus since January 2018 to license any

new or additional software applications.

58. At no time since January 2018 has Cox ordered support from Micro Focus for any

software applications.

59. Section 23(a) of the 2018 Business Support Agreement regarding “Governing

Law,” provides that “[i]f Support is provided in North America, all matters arising out of or relating

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to this Support Agreement are governed by the laws of the state of California.” Ex. D, Governing

Law, Business Support Agreement § 23(a).

60. Section 23(c) of the 2018 Business Support Agreement provides that “[u]nless

otherwise agreed in writing by the parties, this Support Agreement constitutes the entire agreement

between Micro Focus and Customer with respect to Support, and supersedes any prior

representations and communication, whether oral or written.”

61. Sections 23(a) and 23(c) of the 2018 Business Support Agreement are in direct

conflict with Section A(15)(h) of the 2008 Agreement.

62. The 2018 Business Support Agreement does not refer in any way to the 2008

Agreement and it is not signed by the authorized representatives of both Cox and Micro Focus.

THE PARTIES’ DISPUTE ABOUT THE GOVERNING AGREEMENTS

63. Micro Focus asserts that Cox’s deployment, use, and support of the Micro Focus

software is governed by the 2008 Agreement, various product-specific Additional License

Authorizations (“ALAs”), and the 2018 Business Support Agreement.

64. Micro Focus claims that the Software License Grant of the 2008 Agreement

incorporates the “Transaction Documents” that accompany or are otherwise made available to the

Customer with the Software. and that the Transaction Documents take precedence over any

conflicting terms in the Software License Grant of the 2008 Agreement.

65. According to Micro Focus, the Transaction Documents include license terms

delivered or otherwise made available to Customer with the Software, including documents that

are incorporated by reference in any End User License Agreement such as various product-specific

Additional License Authorizations and the 2018 Business Support Agreement.

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66. Cox disputes that the 2018 Business Support Agreement constitutes a “Transaction

Document,” because (among other reasons) it is not “in relation to” an “accepted Customer order”

from Cox to Micro Focus and because Cox never consented to its terms.

67. In addition, in a December 2018 email, Mr. Brian Pinnell, in house counsel to Micro

Focus, admitted that the 2018 Business Support Agreement and other Micro Focus agreements

were sent for the first time to Scott Yates at Cox in e-mails from Naomi White dated August 27,

2019, September 9, 2019 and October 17, 2019.

68. The December 2008 Agreement between HP and Cox Communications contains a

specific definition of “Transaction Documents” that includes: (1) “an accepted Customer order”;

(2) a “mutually executed Statements of Work”; and (3) other “mutually executed documents that

reference this Agreement.” Ex. A, Definitions, Transaction Document, 2008 Agreement, §

A(1)(p).

69. Micro Focus ignores that the phrase “made available” is not separate and

independent from the “accepted Customer order” phrase contained in the 2008 Agreement.

70. The “otherwise made available” language included in the definition of “Transaction

Document” refers to items that are “in relation to” an “accepted Customer order.” Ex. A,

Definitions, Transaction Document, 2008 Agreement, § A(1)(p).

71. The 2018 Business Support Agreement does not constitute a “Transaction

Document” because (1) it is not “in relation to” any “accepted Customer order” and (2) it is (by its

own terms) specific to “support and maintenance services” and therefore constitutes neither

“license terms delivered or otherwise made available to Cox with Software” nor “HP limited

warranty statements delivered with or otherwise made available to Customer with Products.”

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72. Micro Focus’ contention about applicability of the 2018 Business Support

Agreement improperly render superfluous the “entire agreement” clause in Paragraph 15(h) of the

December 2008 Agreement, which provides that any supplement or modification to the 2008

Agreement must be “signed by the duly authorized representatives of both of the parties.”

THE PARTIES’ DISPUTE ABOUT ADDITIONAL FEES OWED TO MICRO FOCUS FOR PURPORTEDLY EXCEEDING LICENSE ENTITLEMENT

73. Micro Focus contends that Cox exceeded its license entitlement in connection with

HP’s Application Lifecycle Management Center. According to Micro Focus, Cox owes fees of

$297,000 for 22 additional licenses.

74. Cox disputes that Micro Focus is entitled to additional fees, because HP’s

Application Lifecycle Management Center is licensed by concurrent usage, with geographical

restrictions for site, area, or global locations. While Cox was entitled to a maximum number of

352 licenses, Cox utilized only 144 concurrent user licenses. License entitlement does not equate

to license usage.

75. According to Micro Focus, Cox purportedly exceeded it license entitlement for the

HP’s Business Availability Center, entitling Micro Focus to $4,703,576.

76. Cox’s license consumption for HP’s Business Availability Center never exceeded

roughly 60,000 points, resulting in an unused license inventory of at least 46,000 points. Further,

HP’s Business Availability Center was entirely decommissioned by Cox on or about April 1, 2020

and is no longer deployed.

77. Micro Focus’ claim that Cox exceeded its license entitlement for HP’s Business

Availability Center is based solely on the total points that the software is authorized to execute.

However, the discrepancy between the number of points that Cox used and the number of points

for which Cox is authorized is due to erroneous license key(s) issued by Micro Focus.

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78. Cox, consistent with its practice with regard to HP’s Application Performance

Manager and HP’s Service & Operations Bridge Center, provided notice to Micro Focus in

connection with the 2018 audit process that it did not intend to continue using Business

Availability Center. Micro Focus cannot properly collect fees under the 2008 Agreement for a

product that Cox is no longer using.

79. Micro Focus also contends that Cox purportedly exceeded its license entitlement

for the HP’s Project and Portfolio Management Center, entitling Micro Focus to $703,846.

80. As with Business Availability Center, Micro Focus issued erroneous license keys

that inflated Cox’s license usage numbers by the number of erroneous keys. In a September 23,

2019 email entitled “Micro Focus | CCI: Comparison Table Follow Up,” Micro Focus’ Naomi

White stated that, “[t]he license keys deployed on Cox’ PPM servers do not align to supported

entitlement quantities.” In essence, Ms. White acknowledged that the licenses keys deployed on

Cox servers did not match the number of license users to which Cox is entitled.

81. Based upon the issuance of erroneous license keys, the mistaken belief that the 2018

Business Support Agreement governs, and a misapplication of the license terms, Micro Focus

contends that it is entitled to $5,704,422 from Cox for additional licenses for HP’s Application

Lifecycle Management Center, HP’s Business Availability Center, and HP’s Project and Portfolio

Management.

THE PARTIES’ DISPUTE ABOUT ADDITIONAL FEES PURPORTEDLY OWED TO MICRO FOCUS FOR FAILURE TO MAINTAIN TECHNICAL SUPPORT

82. Micro Focus claims that Cox is not current on technical support for Business

Availability Center and therefore owes additional fees of $1,180,378. Micro Focus also contends

that Cox failed to remain current on technical support for Configuration Management (including

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Universal Discovery and Universal Software Management Database), and that, consequently, Cox

owes additional fees of $1,598,918.

83. Micro Focus further claims that Cox is not current on technical support for

LoadRunner and is entitled to additional fees of $17,135. Finally, Micro Focus also contends that

Cox failed to remain current on technical support for Project and Portfolio Management, and

therefore owes additional fees of $579,376.

84. By letter dated February 20, 2020, Micro Focus sought payment of additional fees

in the amount of $3,375,807 related to the purported failure of Cox to maintain technical support.

85. Micro Focus seeks to make Cox pay for all-or-nothing technical support on items

that are created through the erroneous license keys issued by Micro Focus.

86. Micro Focus seeks for Cox to pay for technical support in connection with user

quantities that are attributable to erroneous license keys issued by Micro Focus and that reflect

incorrect user quantities that Cox did not intend to purchase.

87. In addition, the 2018 Business Support Agreement does not apply, the 2008

Agreement does not require Cox to maintain technical support for Business Availability Center,

Configuration Management (including Universal Discovery and Universal Software Management

Database), and LoadRunner, and, consistent with Section C(1)(c) of the 2008 Agreement, Cox

provided notice to Micro Focus in connection with the 2018 audit that it did not intend to continue

using Business Availability, Configuration Management (including Universal Discovery and

Universal Software Management Database), and LoadRunner.

88. In response to the notice from Cox that it did not intend to continue using Business

Availability, Configuration Management (including Universal Discovery and Universal Software

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Management Database), and LoadRunner, Micro Focus sent a proposed dormancy letter to Cox

that would materially alter the 2008 Agreement.

89. The November 28, 2018 proposed dormancy letter from Micro Focus included new

terms and conditions to which Cox did not agree. In particular, the proposed November 28, 2018

dormancy letter included an acknowledgement about applicability of the 2018 Business Support

Agreement. Cox therefore did not execute the November 28, 2018 proposed dormancy letter.

90. Based upon the incorrect assumption that the 2018 Business Support Agreement

governs, Micro Focus claims that it is entitled to $3,375,807 from Cox in fees for alleged failure

to maintain technical support.

THE PARTIES’ DISPUTE ABOUT ADDITIONAL FEES PURPORTEDLY OWED TO MICRO FOCUS FOR FAILURE TO DISCLOSE USER INFORMATION

91. Micro Focus also contends that, because Cox failed to disclose user information in

connection with the LoadRunner software during the audit process (and as purportedly required

by the 2018 Business Support Agreement), Cox is required to purchase additional licenses for

$561,806.

92. Cox complied with its obligation to provide user information in connection with

the audit. Micro Focus seeks additional confidential user information. Micro Focus contends that,

because Cox has not disclosed confidential user information, Cox must obtain a World-Wide Add-

on license for the total quantity of virtual users deployed across 1,750 protocols and that Cox also

must pay for applicable support services for the global users. However, Cox reported to Micro

Focus that it utilized only domestic LoadRunner licenses and that Cox had not exceed its license

entitlement for LoadRunner.

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93. Cox is not contractually obligated to provide user data with employee confidential

information. Specifically, the 2018 Business Support Agreement does not apply, and Section

A(9)(b) of the 2008 Agreement does not require Cox to provide user information.

94. Micro Focus seeks from Cox additional payments in the amount of $561,806 in

connection with obtaining a global license for the LoadRunner software.

95. A concrete and substantial controversy exists between Cox and Micro Focus as to

whether (1) the 2008 Agreement has been modified or superseded, (2) whether Cox is obligated

to pay additional license fees calculated by Micro Focus based upon improperly issued license

keys, (3) whether Cox is obligated to pay fees for technical support for discontinued or dormant

applications, such as LoadRunner, Business Availability Center, and Universal Discovery, (4)

whether Cox is obligated to disclose LoadRunner user information sought by Micro Focus, and

(5) whether Cox is obligated purchase additional LoadRunner licenses.

96. A concrete and substantial controversy exists between Cox and Micro Focus as to

whether Cox is obligated to pay the amounts demanded by Micro Focus, which amounts total at

least $9,641,035 as set forth by Micro Focus in its February 20, 2020 correspondence. Since that

date, Micro Focus has claimed an additional $1,608,605 in fees for a total demand to Cox in the

amount of $11,245,640.

COUNT I – DECLARATORY JUDGMENT

97. Cox repeats and incorporates by reference the allegations in paragraphs 1 through

96 of this Complaint.

98. Micro Focus claims that the 2018 Business Support Agreement, which was

allegedly posted to Micro Focus’s website and to which Cox did not assent, is a binding and

enforceable contract that obligates Cox to its terms.

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99. Cox denies that the terms of the 2018 Business Support Agreement are in any way

binding on Cox. The 2008 Agreement governs the parties rights and obligations.

100. Micro Focus argues that, pursuant to the 2018 Business Support Agreement, to

which Cox did not assent, Cox is required to continue to maintain technical support for

discontinued or dormant products, such as LoadRunner, Business Availability Center, and

Universal Discovery (together, the “Dormant Products”).

101. The 2008 Agreement does not require Cox to continue support for discontinued or

dormant products, including but not limited to the Dormant Products. Moreover, consistent with

the 2008 Agreement, HP (from 2008 until 2017) consistently allowed Cox to terminate support on

discontinued or dormant products.

102. Micro Focus argues that, under the 2018 Business Support Agreement, Cox has

exceeded its license entitlement for programs such as Application Lifecycle Management,

Business Availability Center, and Project and Portfolio Management, and that therefore Cox is

obligated to pay Micro Focus both for these allegedly excessive license entitlements and for

corresponding support obligations for programs such as Project and Portfolio Management.

103. Cox denies that the terms of the 2018 Business Support Agreement are in any way

binding on Cox. Pursuant to the 2008 Agreement, Micro Focus is obligated to calculate actual

users by excluding user numbers that are attributable to erroneous license key issuance.

104. Cox has not exceeded its license key entitlement for any of the software

applications at issue, including but not limited to Load Runner, Business Availability Center, and

Universal Discovery, and therefore Cox owes no financial obligation to Micro Focus either for

excessive license entitlement or for corresponding support services.

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105. Micro Focus argues that the 2018 Business Support Agreement requires Cox to

provide detailed data with employee confidential information, including but not limited to data for

LoadRunner users.

106. Cox denies that the terms of the 2018 Business Support Agreement are in any way

binding on Cox. The 2008 Agreement, which governs the parties’ rights and obligations, does not

require Cox to provide the user information requested by Micro Focus.

107. An actual and justiciable controversy exists between Cox and Micro Focus with

respect to the controlling contractual terms between the parties, Cox’s purported obligation to pay

maintenance and support services for discontinued or dormant software, Micro Focus’s obligations

related to erroneous license key issuance, and Cox’s payment obligations for allegedly excessive

license entitlements and corresponding support services.

108. Declaratory relief is appropriate in this case because it will remove the uncertainty

and insecurity with respect to the rights, status, and other legal relations between the parties.

109. Accordingly, pursuant to O.C.G.A. § 9-4-1 et seq. Cox requests that this Court

declare that:

a. the 2008 Agreement governs the relationship between the parties;

b. Cox’s obligations under the 2008 Agreement have not been modified or

superseded by the 2018 Business Support Agreement;

c. the 2018 Business Support Agreement is of no force or effect and is not a

binding or enforceable agreement between the parties;

d. the 2018 Business Support Agreement is not a “Transaction Document” as

defined by the 2008 Agreement;

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e. the 2008 Agreement limits Transaction Documents to documents that are

(1) “in relation” to “an accepted Customer order”; (2) “mutually executed

Statements of Work”; and (3) other “mutually executed documents that

reference [the 2008] Agreement.”

f. The 2018 Business Support Agreement is not a Transaction Document

because it is not (1) in relation to an accepted Customer order; (2) a mutually

executed Statement of Work; or (3) other mutually executed document that

references the 2008 Agreement;

g. Section 15(h) of the 2008 Agreement requires any additional terms to be

mutually agreed upon in writing by the parties;

h. Cox is not required under the 2008 Agreement to maintain support services

for discontinued and dormant applications;

i. Cox has no financial obligation under the 2008 Agreement for maintenance

and support services for discontinued and dormant applications, including

but not limited to Load Runner, Business Availability Center, and Universal

Discovery;

j. In calculating the number of actual users for software applications,

including but not limited to actual users for Application Lifecycle

Management, Business Availability Center, and Project and Portfolio

Management, Micro Focus is required under the 2008 Agreement to

exclude user numbers attributable to its erroneous license key issuance;

k. Cox has no financial obligation under the 2008 Agreement for excessive

license entitlements and corresponding support obligations, including but

-21-

US2008 17331789 8

not limited to Application Lifecycle Management, Business Availability

Center, and Project and Portfolio Management; and

l. Cox has no obligation under the 2008 Agreement to provide to Micro Focus

user detail data that includes employee confidential information.

PRAYER FOR RELIEF

WHEREFORE, Cox prays the Court enter judgment in its favor and award Cox relief as

follows:

1. A declaration of the rights and obligations as described herein;

2. All costs incurred by Cox in bringing this proceeding pursuant to O.C.G.A. §

9-4-9; and

3. Such other relief to which Cox may be entitled.

DATED: August 20, 2020 Respectfully submitted,

/s/ Joel D. Bush, II Joel D. Bush, II Georgia Bar No. 098775 Kathryn C. Ederle Georgia Bar No. 940539

KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4528 Telephone: (404) 815-6500 Facsimile: (404) 815-6555 jbush@kilpatricktownsend.comkederele@kilpatricktownsend.com

Counsel for Plaintiff Cox Communications, Inc.

Exhibit A

(Mr

1

i nvent

CUSTOMER AGREEMENT

Contract Number

This Customer Agreement ("Agreement") is made on the Effective Date specified below between the Hewlett-Packard entity named below ("HP") and the Cox Communications, Inc. ("Customer") and applies to Customer's purchases of Software licenses, Support, and Professional Services from HP.

This Agreement consists of the following:

1. this Cover Page;

2. HP Base Terms;

3. HP Software License Terms;

4. the following Attachments:

• Attachment A: HP Mobile Management Center (MMC) Technical and Functional Specifications;

• Attachment B: HP Professional Services and Support Services;

• Attachment C: HP Managed Services;

• Attachment D: Pricing for Software Licenses and Base Support;

• Attachment E: Service Level Agreements; and

5. related Transaction Documents.

This Agreement will remain in effect until terminated.

HP AGREEMENT NUMBER: EFFECTIVE DATE:

Agreed to by: Agreed to by: HP Entity: Hewlett Packard Company ox Communications, Inc.

Authorized Signature: G/14 / Authorized Signature:

Print Name: Paul Yang Print Name: Stephen Bye

V•P Title: Direetor of Mobility Solutions Title: Vice President

Date: /.01- 10/ 40 8 Date: (2,-hz,i.or

Address: 3000 Hanover Street Palo Alto, CA 94304

Address: 1400 Lake Hearn Drive Atlanta, GA 30319

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A. HP BASE TERMS

1. DEFINITIONS

Contract Number

a. Affiliate of a party means an entity which (a) controls such Party, or (b) is controlled by such Party, or (c) is under common control with such Party or any other entity controlled by such Party, where "control" shall mean the direct or beneficial ownership of a voting interest of at least fifty percent (50%) (or in a foreign jurisdiction where majority ownership is prohibited by law, the maximum ownership percentage permitted by law) or the right or power, directly or indirectly, to elect a majority of the Board of Directors, or the right or power to control management.

b. Deliverable means the tangible work product resulting from the performance of Services excluding Products and Custom Products.

c. Documentation means any manuals, instructions, or other information furnished by HP in written or electronic form concerning the functionality, operation and/or use of the Products.

d. Enabled device means a Customer device that has an HP client product installed and the feature turned on.

e. End User Data shall mean all usage data, activity data, billing information or other information collected from, about or otherwise regarding or identifiable to customers, subscribers or end users of Customer's services.

f. Hardware means computer and related devices and equipment, related documentation, accessories, parts, and upgrades.

g HP Branded means Products and Services bearing a trademark or service mark of Hewlett-Packard Company or any Hewlett-Packard Company Affiliate, and embedded HP selected third party Software that is not offered under a third party license agreement.

h. HP Business Partner means select companies authorized by HP to promote, market, support, and deliver certain Products and Services.

i. Product means Hardware and Software listed in HP's standard price list at the time of HP's acceptance of Customer order, and including products that are modified, altered, or customized to meet Customer requirements "Custom Products".

Professional Service means consulting, integration, or technical services performed by HP under a Statement of Work or other Transaction Document.

k. Service means Support and Professional Services.

I. Software means machine-readable instructions and data (and copies thereof) including middleware and firmware and related updates and upgrades, licensed materials, user documentation, user manuals, and operating procedures.

m. Specification means technical information about Products published in HP Product manuals, user documentation, and technical data sheets in effect on the date HP delivers Products to Customer.

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n Statement of Work means a document so titled and executed by Customer and HP, that describes the Services to be performed by HP under the Professional Services Terms or Support Terms sections.

o Support means Hardware maintenance and repair, Software maintenance, training, installation and configuration, and other standard support services provided by HP and includes "Custom Support" which is any agreed non-standard Support as described in a Statement of Work.

p. Transaction Document(s) means an accepted Customer order (excluding pre-printed terms) and in relation to that order valid HP quotations, license terms delivered or otherwise made available to Customer with Software, HP published technical data sheets or service descriptions, attachments, HP limited warranty statements delivered with or otherwise made available to Customer with Products, and mutually executed Statements of Work, all as provided by HP, or other mutually executed documents that reference this Agreement.

Version means a release of Software that contains new features, enhancements, and/or maintenance updates, or for certain Software, a collection of revisions packaged into a single entity and, as such, made available by HP to its customers (also called a "Release").

r. Virus means a worm, trojan horse or computer instructions or code that is designed to infect, disable, impair, harm, damage, destroy, affect negatively or interfere with files, data, or the operation of equipment, computers, software or networks, generally without the knowledge or consent of the user.

a-

2. PARTICIPATION

a. Global Agreement. This Agreement is initially between Hewlett-Packard Company, a Delaware corporation, and Cox Communications, Inc., a Delaware corporation. Customer Affiliates may participate under this Agreement through the issuance of their order referencing this Agreement and its acceptance by an HP Affiliate in the same country. Upon HP's acceptance of such an order, the terms of this Agreement will apply between the HP Affiliate and the Customer Affiliate and references to "HP" and "Customer" shall mean HP Affiliate and Customer Affiliate respectively. The HP Affiliate may include in their acceptance transmittal supplemental country specific terms to reflect local law or business practice that will take precedence over any other inconsistent terms in this Agreement. All orders placed by Customer Affiliates must specify a "ship to" address or Service performance location within the country of the HP Affiliate where the order is accepted.

b. Prior Authorization. Any sale or license of a Product or Service under this Agreement to a Customer Affiliate in countries where HP does not have an Affiliate is subject to HP's prior written authorization.

c. Affiliate Liability. Each HP Affiliate will perform only in its designated jurisdiction and is solely responsible for claims arising out of its own performance.

3. PRICES AND TAXES

a. Prices. Product and Service prices are specified in the current local published HP price list at the time HP receives Customer's order, or in a valid Transaction Document. Prices are subject to change at any time prior to HP's acceptance of Customer's order, unless stated otherwise in a Transaction Document.

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b. Price Validity. Unless prices are changed by HP in accordance with this Agreement, prices are valid while this Agreement is in effect for the period set forth in a Transaction Document. Product prices for an order remain valid for ninety (90) days from original order date unless otherwise quoted by HP or set forth in an agreed Transaction Document.

c. Taxes. Prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on HP or on the Customer by any taxing authority (other than taxes imposed on HP's income) related to Customer's order, unless Customer has provided HP with an appropriate resale or exemption certificate for the delivery location. "Delivery location" means the location where HP transfers title or possession of Products to Customer or its designate or the location where Services are performed or, in the case of remote or intangible Services, where the Products being serviced are located.

d. Withholding Tax. If Customer is required by law to withhold and remit tax relating to Customer's order, Customer shall:

1. be entitled to reduce the payment by the amount of such tax;

2. withhold and remit such tax to the applicable tax jurisdiction;

3. assist HP to obtain the benefit of any reduced withholding tax under applicable tax treaties; and

4. furnish to HP a tax certificate or other acceptable evidence of payment of such tax as required by the relevant taxing authorities.

e. Financing. Third party financing transactions require advance notice to HP for appropriate tax treatment.

4. CUSTOMER ORDERS

a. Orders. Orders must reference this Agreement and are subject to acceptance by HP. Orders must specify a "ship to" address and have a delivery date within ninety (90) days from the order date unless otherwise provided in a Transaction Document.

b. Cancellation. Customer may cancel an order for Products (but not Custom Products) at no charge up to five (5) business days prior to the scheduled shipment date.

c. Extended Delivery Dates. Changes to orders that extend delivery dates beyond ninety (90) days from the order date shall be considered new orders at the prices in effect when HP receives the changed order.

5. DELIVERY

a. Delivery. HP will deliver Products by arranging shipping to the receiving area at the "ship to" address specified in Customer's order within the country in which HP accepted the order. HP may elect in its sole discretion to deliver Software, Deliverables, Specifications, or Product documentation by enabling electronic transmission to, or electronic access or download by Customer in the country where HP accepted the order.

b. Delivery Charges. Transportation and handling charges are payable by Customer and will be specified in an HP invoice unless otherwise specified in a Transaction Document. Special packing or shipping arrangements will be charged separately to Customer.

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jnean► Contract Number

c. Delivery Requirements. If HP is unable to meet Customer's Product delivery requirements, Customer may cancel that order, at no charge, and such cancellation is Customer's sole remedy.

6. PAYMENT

a. Payment Terms. Customer agrees to pay, without offset, all invoiced amounts within thirty (30) days of HP's invoice date. HP may change credit or payment terms for unfulfilled orders if, in HP's reasonable opinion, Customer's financial condition, previous payment record, or relationship with HP merits such change. Such changed credit or payment terms shall not become effective until after HP has notified Customer in writing of such changed credit or payment terms.

b. Visa Procurement Card. The parties intend to use the Visa® Procurement Card to facilitate billing and will work together in good faith to implement such process. Once implemented, bi lling and invoicing of Customer will be made through the use of a Visa® Procurement Card unless otherwise stated in the Statement of Work.

c. Customer Default. HP may discontinue performance if Customer has not cured any failure to perform under this Agreement, including failure to pay any sum due, after fifteen (15) days written notice Customer.

d. Security Interest. HP retains a security interest in Products until payment. Customer shall execute any paperwork required by HP to effectuate any such security interest.

7, WARRANTY PROVISIONS

a. Warranty Statements. HP limited warranty statements for Hardware, Software, Support, and Professional Services, as applicable, are contained in their respective sections of this Agreement. The limited warranties in this Agreement are subject to the terms, limitations, and exclusions contained in the limited warranty statement provided for the Product in the country where that Product is located when the warranty claim is made. A different limited warranty statement may apply and be quoted if the Product is purchased as part of a system.

b. Transfer. Warranties are transferable to another party for the remainder of the warranty period subject to HP license transfer policies and any assignment restrictions.

c. Delivery Date. Warranties begin on the date of delivery, or on the date of installation if installed by HP. If Customer schedules or delays such installation by HP more than thirty (30) days after delivery, Customer's warranty period will begin on the 31st day after delivery.

d. Exclusions. HP is not obligated to provide warranty services or Support for any claims resulting from:

1. site preparation that does not conform to requirements for site preparation provided to Customer prior to delivery of the Products, or site or environmental conditions that do not conform to HP's site specifications provided to Customer prior to delivery of the Products;

2. Customer's use of Products in a manner other than as permitted in the Specifications or Transaction Documents;

3. failure to properly or adequately maintain or calibrate the Products per the standards set forth in Documentation, except if HP provided such maintenance or calibration;

4. Customer or third-party media, software, interfacing, supplies, or other products;

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5. modifications not performed or authorized by HP;

6. virus, infection, worm or similar malicious code not introduced by HP; or

7. abuse, negligence, accident, loss or damage in transit, fire or water damage, electrical disturbances, transportation by Customer or other causes beyond HP's control.

e. Non-HP Branded Products and Services. HP provides third-party products, software, and services that are not HP Branded "AS IS" without warranties of any kind, although the original manufacturers or third party suppliers of such products, software and services may provide their own warranties. . If applicable, HP will pass through any such warranties to Customer.

f. Disclaimer. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THIS AGREEMENT ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY HP OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY LOCAL LAW HP DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT.

B. INTELLECTUAL PROPERTY INFRINGEMENT

a. Third-Party Claims. HP will defend or settle any claim against Customer and its Affiliates and their respective officers, directors, principals (partners, shareholders or holders of an ownership interest as the case may be) agents and employees: (i) alleging that HP Branded Products or Support provided under this Agreement infringes intellectual property rights in the country where they were sold, if Customer:

1. promptly notifies HP of the claim in writing;

2. cooperates with HP in the defense of the claim; and

3. grants HP sole control of the defense or settlement of the claim.

HP will pay indemnity claim defense costs, including reasonable attorneys' fees and court costs, HP—negotiated settlement amounts, and court-awarded damages.

b. Remedies. If such an infringement claim appears likely, then, in addition to its infringement indemnity obligations contained herein, HP may modify the HP Branded Products or Support, procure any necessary license, or replace the affected item with one that is at least functionally equivalent. If HP determines that none of these alternatives is reasonably available, then HP will issue Customer a refund equal to:

1. the purchase price paid for the affected item if within one year of delivery, or the Customer's net book value thereafter, or

2. if the claim relates to infringing Support, the lesser of twelve (12) months charges for the claimed infringing Support or the amount paid by Customer for that Support.

c. Exclusions. HP has no obligation for any claim of infringement to the extent arising from:

1. HP's compliance with Customer or third party designs, specifications, instructions, or technical information;

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invent Con2ract Number

2. modifications made by Customer or a third party;

3. Customer non-compliance with the Specifications or the Transaction Documents, or

4. Customer use with products, software, or services that are not HP Branded.

d. Sole and Exclusive. This sub-section A.8 states HP's entire liability for claims of intellectual property infringement.

9. INTELLECTUAL PROPERTY RIGHTS

a. No Implied Licenses. No rights in copyright, patents, trademarks, trade secrets, or other intellectual property are granted by either party to the other except as expressly provided under this Agreement.

b. End User Data. End User Data is and shall remain the property of Customer. HP employees, agents and contractors shall not collect End User Data unless necessary to perform HP's obligations under this Agreement. To the extent that HP employees, agents or contractors have access to such End User Data, they shall maintain the confidentiality of such data as provided in Section 14 of this Agreement. To the extent that any End User Data must be removed by HP from the Customer's site and retained by HP for any period of time, HP will use an encrypted or other secure method to store such End User Data. HP employees, agents and contractors who have access to End User Data will comply with Customer privacy policy applicable to End User Data described in the SOW.

10. RESTRICTED USE

Products, Support, and Deliverables are not specifically designed, manufactured, or intended for use as parts, components, or assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility. Customer is solely liable if Products, Support, or Deliverables purchased by Customer are used for these applications and will indemnify and hold HP harmless from all loss, damage, expense, or liability in connection with such use.

11. LIMITATION OF LIABILITY AND REMEDIES

a. Limitation of Liability HP. To the extent HP is held legally liable to Customer, HP's totally liability is limited as follows:

i. Direct damages resulting from any claim based on HP's warranty obligations under this Agreement shall be limited to the associated remedies defined in HP's statement of such obligations;

ii. Direct damages for any claim based on personal injury shall not be subject to any limitation of liability;

iii. Direct damages for any claim based on damage to tangible property shall not exceed the limit of US $1,000,000;

iv. Direct damages for any claim based on a material breach of this Agreement shall be limited to US $1,000,000;

v. Direct damages for any claim based on HP's breach of its confidentiality obligations under Section 14 of this Agreement shall not be subject to any limitation of liability; and

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i n yrs nt Contract Number

vi. Direct damages for any claim based on HP's breach of any Customer intellectual property rights pursuant to this Agreement shall not be subject to any limitation of liability.

The monetary limitations in this Section A.11(a) do not limit HP's obligations for third party claims described in Section A.8

b. Limitation of Liability Customer. To the extent Customer is held legally liable to HP, Customer's total liability is limited as follows:

i. Direct damages for any claim based on personal injury shall not be subject to any limitation of liability;

ii. Direct damages for any claim based on tangible property shall not exceed the limit of U.S. $1,000,000;

iii. Direct damages for any claim based on a material breach of this Agreement shall be limited to U.S. $1,000,000;

iv. Direct damages for any claim based on Customer's breach of its confidentiality obligations under Section 14 of this Agreement shall not be subject to any l imitation of liability;

v. Direct damages for any claim based on breach of any HP intellectual property rights pursuant to this Agreement shall not be subject to any limitation of liability; and

vi. Direct damages for any claim based on Customer's payment obligations pursuant to this Agreement shall not be subject to any limitation of liability.

c. Disclaimer of Consequential Damages. EXCEPT FOR CLAIMS BY A PARTY FOR INFRINGEMENT OF THEIR INTELLECTUAL PROPERTY RIGHTS AGAINST THE OTHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL COSTS OR DAMAGES INCLUDING, WITHOUT LIMITATION, DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO REALIZE EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE RESTORATION.

d. Legal Theory. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.

12. TERMINATION a. Termination for Convenience. Either party may terminate this Agreement for convenience upon

thirty (30) days prior written notice to the other party, unless prohibited by the terms of a Transaction Document.

b. Termination for Cause. Either party may terminate this Agreement on written notice if the other party fails to comply with this Agreement after it has been notified in writing of the nature of the failure and been provided with thirty (30) days to cure the failure.

c. Prior Orders. Except as otherwise provided in sub-section A.12.d below, the termination of this Agreement will not affect payments due or fulfillment and payment of orders accepted prior to

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termination.

Contract Number

d. Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is subject of involuntary bankruptcy proceedings, which are not terminated within sixty (60) days of filing, has a receiver appointed, or has its assets assigned, the other party may terminate this Agreement without notice and may cancel any unfulfilled obligations.

e. Survival. Any terms in this Agreement which by their nature extend beyond the termination or expiration of this Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns. Any termination under this sub-section A.12 will be without prejudice to the terminating party's legal rights and remedies, including injunction and other equitable remedies.

13. HP BUSINESS PARTNERS

HP's obligations with respect to HP Branded Products or Services procured by Customer from authorized HP Business Partners are limited to the sub-sections A.7 Warranty Provisions, A.8 Intellectual Property Infringement, A.9 Intellectual Property Rights, A.10 Restricted Use, A.11 Limitation of Liability and Remedies; and clauses b, c, d, e, f, g, h, i, j, and k of sub-section A.14 General in these Base Terms and the Software License Terms section. HP is not responsible for the acts or omissions of HP Business Partners, for any obligations undertaken or representations that they may make, or for any other products or services that they supply to Customer.

14. CONFIDENTIALITY

Either party may receive or have access to (the "receiving party") technical information, information about product plans and strategies, promotions, customers, end users and related technical, financial or business information or other information which the disclosing party considers to be the confidential information of that party or its third party contractors or suppliers ("Confidential Information"). The following will apply to any such Confidential Information:

a. Before any Confidential Information is disclosed, the parties will first agree to disclose and receive such information in confidence. To receive the protections under this Section 14, Confidential Information which is disclosed in written form must be marked as confidential at the time of disclosure, or if disclosed orally must be disclosed in a manner from or under circumstances in which the receiving party would reasonably understand such material to be confidential and, except as provided below, must be designated as confidential in a writing by the disclosing party summarizing the Confidential Information disclosed and sent to the receiving party within thirty (30) days after such disclosure. The following information will be considered Confidential Information if disclosed orally or discovered by the receiving party in the performance of such party's obligations under this Agreement (including any Transaction Document or Statement of Work) without any marking or writing requirement: End User Data and non-public information discovered by Supplier through access to Customer's Network (as such term is defined in Section A.15(p)) which a reasonable person would consider from the circumstances to be confidential information of Customer.

b. Confidential Information may be used by the receiving party only with respect to the performance of its obligations under this Agreement and any Transaction Document or Statement of Work, and only by the receiving party and its employees, agents or contractors who have a need to know such information for purposes of this Agreement. The receiving party wil l protect, and wil l ensure

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that its employees, agents and contractors will protect, the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information by the receiving party, its employees, agents or contractors as the receiving party uses to protect its own confidential information of a like nature.

c. Except as expressly set forth in the Agreement, no license is granted by the disclosing party to the receiving party with respect to Confidential Information. The receiving party shall not copy or otherwise reproduce, in whole or in part, any Confidential Information without the prior written authorization of disclosing party, except as may be reasonably necessary to fulfill the purposes of this Agreement. The receiving party shall promptly return or destroy all tangible forms of Confidential Information, and copies thereof, upon disclosing party's request or termination of this Agreement, and if such Confidential Information is destroyed, shall promptly provide evidence reasonably satisfactory to the disclosing party of such destruction. The receiving party shall destroy all copies of any analyses, compilations, studies or other documents prepared by the receiving party or its agents, contractors or employees containing or reflecting Confidential Information and, upon the disclosing party's request or termination of this Agreement, certify that it has taken such action.

d. The receiving party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that the receiving party uses reasonable efforts to notify the disclosing party in advance of such disclosure so as to permit the disclosing party to request confidential treatment or a protective order prior to such disclosure and redacts the Confidential Information to only disclose Confidential Information to the extent required by law.

e. The receiving party acknowledges that the Confidential Information of the disclosing party may be unique property of extreme value to the disclosing party and that the disclosing party may suffer substantial damages not readily ascertainable or fully compensable in terms of money in the event of the breach by the receiving party or any of its contractors, agents or employees of any of its obligations under this Agreement.

f. The receiving party may use and disclose any Residuals for any purpose, except that no license to any disclosing party patent, trademark, mask work or copyright is granted under this Section. Residual means general knowledge, skills and experience, and any ideas, concepts, know-how and techniques that are acquired, developed or used by the receiving party in the performance of such party's obligations under this Agreement. However, Residuals does not include any detailed financial or personnel data, End User Data or the identity of the disclosing party.

The receiving party's confidentiality obligation will be for the term of the Agreement and a period of three (3) years after the termination of the Agreement.

h. The confidentiality obligations of the parties will not extend to information that:

1. was in the receiving party's possession before receipt from the disclosing party;

2. is or becomes publicly known without breach by the receiving party;

3. is rightfully received by the receiving party from a third party without a duty of confidentiality;

4. is independently developed or learned by the receiving party without the use of or reference

g-

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to any Confidential Information; or

5. is disclosed by the receiving party with the disclosing party's prior written approval.

15. GENERAL

a. Electronic Orders and EDI. Where facilitated under local law, the parties may do business electronically, including order placement and acceptance. Once accepted, such orders will create fully enforceable obligations subject to the terms of this Agreement. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Customer and HP will adopt commercially reasonable security measures for password and access protection.

b. Internal Use. Except as provided in section E or a Transaction Document, the Products and Services acquired by Customer under this Agreement are solely for Customer's own internal use and not for resale or sub-licensing, except to its Affiliates.

c. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control; however, this provision will not apply to Customer's payment obligations. If a force majeure event prevents a party from performing for thirty (30) days, the other party may terminate this Agreement by notice to such party.

d. Assignment. Neither party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the above, Customer may assign or transfer this Agreement and any rights and obligations hereunder to an Affiliate, provided that Customer shall remain liable and responsible for obligations of the assignee under this Agreement. HP may, however, assign or transfer any rights and obligations hereunder to a company within the Hewlett-Packard group subject to written notice and provided that HP shall remain responsible for such Affiliates performance under this Agreement. Assignments of HP Software licenses are subject to compliance with HP's Software license transfer policies.

e_ Export and Import. Customer who exports, re-exports, or imports Products, technology, or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. HP may suspend performance if Customer is in violation of any applicable laws or regulations.

f. Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Georgia, excluding rules as to choice and conflict of law and, where permitted, the parties waive their right to a jury trial. Customer and HP agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

Notices. All notices that are required under this Agreement will be in writing. Notice will be deemed given and effective: (i) upon delivery if set by personal delivery; (ii) the next business day if sent by a reliable overnight deliver service; or (iii) five (5) days after deposit in the United States mail, certified, return receipt requested, with postage pre-paid. All notices will be sent to the receiving party's address as set forth below or to such other address that the receiving party may designate by giving notice to the other party in accordance with this Section:

g-

If to HP:

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in v o nt

Cullen Stapleton

1211 1 w 129th Terrace

Overland Park, Kansas 66213

With a copy to:

Hewlett-Packard Company

Attn: General Counsel

3000 Hanover Drive

Palo Alto, CA 94304

If to Customer

Cox TMI Wireless, LLC

Attn: Director of Contracts Administration

1400 Lake Hearn Drive

Atlanta, GA 30319

with a copy to:General Counsel

Cox Communications, Inc.

1400 Lake Hearn Drive

Contract Number

Atlanta, GA 30319

h. Entire Agreement. This Agreement is the entire agreement between HP and Customer regarding Customer's purchase of Products and Services, and supersedes and replaces any previous communications, representations, or agreements, or Customer's additional or inconsistent terms, whether oral or written. In the event any provision of this Agreement is held invalid or unenforceable the remainder of the Agreement will remain enforceable and unaffected thereby. This Agreement may be modified, supplemented or changed only by an agreement in writing which makes specific reference to this Agreement and which is signed by the duly authorized representatives of both the parties.

i. Waiver. Neither party's failure to exercise or delay in exercising any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights.

Order of Precedence. Unless otherwise agreed or provided herein, documents will apply in the following descending order of precedence:

1. Transaction Documents consisting of license terms or limited warranty statements delivered or otherwise made available to Customer with Products;

2. the sections of this Agreement

3. all other Transaction Documents.

k. Independent Contractor. HP is an independent contractor in the performance of this Agreement

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and neither HP nor any HP personnel are employees or agents of Customer or HP Business Partners. Nothing in this Agreement will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. HP is solely responsible for all of its employees and agents. HP shall monitor the actions of its employees and agents to ensure that such actions do not cause such persons to be deemed employees of Customer.

I. Records and Audits.

Each party shall maintain complete and accurate records as reasonably necessary to enable such party to demonstrate compliance with all of the terms and conditions of this Agreement, any Transaction Document and any Statement of Work (the "Relevant Records") for a period of three (3) years after the date or expiration of this Agreement (the "Retention Period"); provided, however, that if a dispute arises in connection with this Agreement, any Transaction Document or any Statement of Work, the Retention Period will be extended automatically until the resolution of such dispute becomes final and non-appealable and all obligations of the parties to one another relating to the resolution have been satisfied in full. During the Retention Period, a party may appoint a nationally recognized third-party auditor to conduct, at its cost, audits of the other party's Relevant Records. Such audits may be conducted only in accordance with the following:

(1) Audits will occur no more than once each calendar year and the scope of the audit will be limited to the Relevant Records;

(2) The party requesting an audit under this provision will provide the other party with thirty (30) days prior written notice of each audit;

(3) The parties will work together in good faith to establish an audit process that does not interfere with the audited party's ability to perform its obligations under this Agreement or any other agreement, or compromise any reasonable security processes or procedures;

(4) Prior to conducting the audit, the auditor will sign a confidentiality agreement that is no less protective to the audited party than the confidentiality terms set forth in this Agreement;

(5) The audited party will provide the auditor with information reasonably required to effect the audit, provided however that audited party reserves the right to impose limitations or require additional assurances from party requesting an audit under this provision and its auditor as may be necessary to protect the Confidential Information of the audited party that may be accessed by the auditor as a part of the audit;

(6) The auditor reports prepared in connection with the audits will be deemed confidential information of audited party; provided, however, that such information may be used by auditing party in any action or proceeding instituted by such party against the audited party for non-compliance with this Agreement; and

In no event will a party be required to provide the other party or its auditor with access to such party's internal cost and resource utilization data, or data related to employees or other customers of such party.

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Should an audit reveal that the audited party has underpaid amounts due or that the auditing party has been overcharged for Services performed under this Agreement, the audited party shall promptly pay or refund, as applicable, all amounts due to the auditing party.

m. Nonexclusive Agreement. The parties acknowledge that the obligations under this Agreement will be non-exclusive, and neither party shall be prohibited from entering into similar agreements.

n. Bankruptcy. To the extent this Agreement is an executory contract under which HP is a licensor of "intellectual property" as that term is defined in Title 11, United States Code (the "Bankruptcy Code"), Customer and HP acknowledge that the licenses of such intellectual property contained in this Agreement (including any Statement of Work or supplements hereto) will be subject to Section 365(n) of the Bankruptcy Code. HP acknowledges that if HP, as a debtor in possession or a trustee in bankruptcy in a case under the Bankruptcy Code, rejects this Agreement, Customer may elect to retain its license rights to "intellectual property" under this Agreement as provided in Section 365(n) of the Bankruptcy Code.

o. Compliance with Laws. Each party shall comply with all applicable laws, statutes, ordinances, codes, rules, regulations, orders, judgments, decrees, standards, requirements or procedures enacted, adopted, applied, enforced or followed by any governmental authority ("Laws") (including procurement of required permits or certificates) in such Party's performance hereunder, including its manufacturing, delivery, use, licensing, leasing and sale of the Products.

p. Plant and Work Rules. When Services are to be performed at a Customer facility, HP shall cause all persons performing services to comply with policies and procedures ("Policies") of Customer or its Affiliates concerning access to the premises, conduct, safety and security, provided such Policies are set forth in a Statement of Work for such services. When performing Services that require persons to access the computer system(s) or software of Customer or one or more of its Affiliates (collectively, the "Network"), HP shall cause any such persons to comply with any and all applicable portions of Customer's or such Affiliate's information-systems-related policies and standards, provided such policies and standards are set forth in a Statement of Work for such Services.

q- Security Policy: HP will make all persons performing Services aware of Customer's security philosophy which is set forth in a Statement of Work and of any updates thereto provided to HP by Customer.

r. Mutuality of Agreement. This Agreement and its provisions shall not be construed more strictly against one party than the other regardless of the party responsible for drafting such provision of this Agreement.

s. Remedies. Except as expressly provided otherwise in this Agreement, in addition to any remedies provided in this Agreement, the parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under law shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.

t. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

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B. HP SOFTWARE LICENSE TERMS

Contract Number

1. LICENSE GRANT HP grants Customer and any Affiliate of Customer a worldwide, royalty bearing (as specifically provided in the Transaction Document), non-exclusive, non-transferable license to "Use", in object code form, the Version or Release of the HP Branded Software delivered from an HP accepted order. For purposes of this Agreement, unless otherwise specified in the Transaction Documents, "Use" means to install, store, load, execute, and display one copy of the Software on one device at a time for Customer's internal business purposes. Customer's Use of such Software is subject to these license terms and the Use restrictions and authorizations for the Software specified by HP in Transaction Documents that accompany or are otherwise made available to Customer with the Software (the "Software License"). In the event of any conflict among such terms, the order of precedence will be the accompanying Transaction Documents then the terms of this section, HP grants Customer and Customer Affiliates a worldwide, non-exclusive, non-transferable license to use and reproduce the Documentation internally as reasonably necessary to support Customer's Use of the Software.

2. THIRD-PARTY SOFTWARE

For non-HP Branded Software, the third party supplier's license terms and use restrictions found in the Transaction Documents that may accompany that Software will solely govern its Use.

3. OWNERSHIP

This Software License confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers are intended beneficiaries under this Agreement and independently may protect their rights in the Software in the event of any infringement. All rights not expressly granted to Customer are reserved solely to HP or its suppliers.

4. DELIVERY AND ACCEPTANCE

a. Delivery. HP will deliver and, if provided under the Transaction Documents, install the Software under the terms and conditions of the Transaction Documents.

b. Acceptance. Customer accepts Software upon delivery, except as otherwise agreed upon in any Transaction Document.

5. UPGRADES

Software Versions, enhancements, upgrades, minor releases, major releases, patches and maintenance updates, if available, may be ordered separately or may be available through Software Support. If HP charges other customers such fees, HP reserves the right to require additional licenses and fees for Software Versions or separately purchased maintenance updates or for Use of the Software in conjunction with upgraded Hardware or Software. When Customer obtains a license for a new Software Version, Customer's Software License for the earlier Version

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shall terminate. Software Versions are subject to the license terms in effect on the date that HP delivers or makes the Version available to Customer.

6. LICENSE RESTRICTIONS

a. Use Restrictions. Customer may not exceed the number of licenses, agents, tiers, nodes, seats, or other Use restrictions or authorizations agreed to and paid for by Customer. Some Software may require license keys or contain other technical protection measures. Customer acknowledges that HP may monitor Customer's compliance with Use restrictions and authorizations remotely, or otherwise. If HP makes a license management program available which records and reports license usage information, Customer agrees to appropriately install, configure and execute such license management program beginning no later than one hundred and eighty (180) days from the date it is made available to Customer and continuing for the period that the software is used.

b. Copy and Adaptation. Unless otherwise permitted by HP, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software. If Customer makes a copy for backup purposes and installs such copy on a backup device, unless otherwise provided in the Transaction Documents, Customer may not operate such backup installation of the Software without paying an additional license fee, except in cases where the original device becomes inoperable. If a copy is activated on a backup device in response to failure of the original device, the Use on the backup device must be discontinued when the original or replacement device becomes operable. Customer may not copy the Software onto or otherwise Use or make it available on, to, or through any public or external distributed network. Licenses that allow Use over Customer's intranet require restricted access by authorized users only.

c. Copyright Notice. Customer must reproduce all copyright notices that appear in or on the Software (including documentation) on all permitted copies or adaptations. Copies of documentation are limited to internal use.

d. Designated System. Notwithstanding anything to the contrary herein, the Software License for certain Software, as identified in Transaction Documents, is non-transferable and for use only on a computer system owned, controlled, or operated by or solely on behalf of Customer or its Affiliates and may be further identified by HP by the combination of a unique number and a specific system type ("Designated System") and such license will terminate in the event of a change in either the system number or system type, an unauthorized relocation, or if the Designated System ceases to be within the possession or control of Customer or its Affiliates.

e. OS Software. Operating system Software may only be used when operating the associated Hardware in configurations as approved, sold, or subsequently upgraded by HP or an HP Business Partner.

f. Changes. Customer will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software. Where Customer has other rights mandated under statute, Customer will provide HP with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.

g. Use for Service Provision. Extending the Use of Software to any person or entity other than

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Customer as a function of providing services, (i.e.; making the Software available through a commercial timesharing or service bureau) must be authorized in writing by HP prior to such use and may require additional licenses and fees.

7. LICENSE TERM AND TERMINATION

Unless otherwise specified in a Transaction Document, the Software License granted Customer will be perpetual, provided however that HP may terminate the Software License upon notice for failure to comply with Customer's payment obligations with respect to the Software or the provisions of Section B.6 hereof. Immediately upon termination of the Software License or upon expiration of any individual limited term license, Customer will destroy the Software and all copies of the Software subject to the termination or expiration or return them to HP. Customer shall remove and destroy or return to HP any copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's database. Customer may retain one copy of the Software subsequent to termination solely for archival purposes only. At HP's request, Customer will certify in writing to HP that Customer has complied with these requirements.

8. LICENSE TRANSFER

Customer may not sublicense, assign, transfer, rent, or lease the Software or the Software License to any other party except as permitted in this section. Except as provided in sub-section B.6.d above, HP Branded Software licenses are transferable subject to HP's prior written authorization and payment to HP of any applicable fees or compliance with applicable third party terms. Upon transfer of the Software License Customer's rights under the License will terminate and Customer will immediately deliver the Software and all copies to the transferee. The transferee must agree in writing to the terms of the Software License, and, upon such agreement, the transferee will be considered the "Customer" for purposes of the license terms. Customer may transfer firmware only upon transfer of the associated Hardware.

9. U.S. FEDERAL GOVERNMENT USE

If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, Customer agrees that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and technical data for commercial items are licensed under HP's standard commercial license.

10. WARRANTY

a. HP Branded Software will materially conform to its Specifications. If a warranty period is not specified for HP Branded Software, the warranty period will be ninety (90) days from the delivery date or on the date of installation, if installed by HP (the "Warranty Period").

b. HP warrants that the HP Branded Software as delivered to Customer will not contain any "Virus".

11. VIRUS WARRANTY

HP warrants that any physical media containing HP Branded Software will be shipped free of viruses.

12. WARRANTY LIMITATION

HP does not warrant that the operation of Software will be uninterrupted or error free, or that

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Software will operate in Hardware and Software combinations other than as expressly required by HP in the Product Specifications or that Software will meet requirements specified by Customer.

13. EXCLUSIVE REMEDIES

Subject to the liability caps described in Section A.1 1 of this Agreement, HP will be liable for all direct damages arising out of breach of the warranty described in Section 10(b) above. If notified of any other valid warranty claim during the Warranty Period, HP will, at its option, correct the warranty defect for HP Branded Software, or replace such Software. If HP is unable, within a reasonable time, to complete the correction, or replace such Software, Customer will be entitled to a refund of the purchase price paid upon prompt return of such Software to HP. Customer will pay expenses for return of such Software to HP. HP will pay expenses for shipment of repaired or replacement Software to Customer. This sub-section B.14 states HP's entire liability for warranty claims.

14. THIRD PARTY SOFTWARE

If any commercial third party software is incorporated in the HP Branded Software, HP shall be responsible for securing the applicable third party licenses and Customer shall not be required to pay additional sums for such third party licenses. Any such third party licenses shall not place additional terms on Customer or its Affiliates.

15. IMPLIED LICENSE

There are no implied licenses.

16. FREEWARE AND OPEN SOURCE

Notwithstanding other statements in this Agreement, Software licensed without fee or charge also referred to as Freeware and/or Open Source is provided "AS IS" without any warranties or indemnities of any kind. Software provided under any open source licensing model is governed solely by such open source licensing terms which will prevail over this Agreement.

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C. HP SUPPORT TERMS

1. SUPPORT SERVICES

Contract Number

a. Description of Support. HP will deliver Support according to the description of the offering, eligibility requirements, service limitations, and Customer responsibilities described in the relevant Transaction Documents.

b. Ordering Support. Customer may order Support:

1. at the time of Product purchase, or prior to installation of Products for which Support is being purchased, for a fixed term (may be referred to as "HP Care Pack");

2. after the time of Product purchase, for either a fixed term or an initial term that may be renewed (may be referred to as "HP Contractual Services");

3. on a per-event basis; or

4. at any time, when agreed non-standard Support has been offered by HP for the Customer according to a Statement of Work (also known as "Custom Support") or as otherwise offered by HP.

c. Cancellation. Customer may cancel Support orders or delete Products from Support upon thirty (30) days written notice, unless otherwise stated in a Transaction Document. HP may discontinue Support for Products and specific Support services no longer included in HP's Support offering upon sixty (60) days written notice, unless otherwise agreed. If Customer cancels prepaid Support, HP will refund Customer a pro-rata amount for the unused prepaid Support, iess any early termination fees or subject to any restrictions set forth in a Transaction Document.

d. Return to Support. if Customer allows Support to lapse, HP may charge Customer additional fees to resume Support or require Customer to perform certain hardware or software upgrades. HP will review and assess whether such fees are required, and explain these to Customer at the time of the request to return to Support.

e. Local Availability. Customer may order Support from HP's current Support offerings. Some offerings, features, and coverage (and related Products) may not be available in all countries or areas

f. Support Warranty. HP warrants that it will perform Support using generally recognized commercial practices and standards.

Exclusive Remedies. HP will re-perform Support not performed in accordance with the warranty herein. This sub-section C.1.g states HP's entire liability for Support warranty claims.

2. PRICING, SERVICES, AVAILABILITY, AND INVOICING

a. Pricing. Except for prepaid Support or as otherwise stated in a Transaction Document, HP may change Support prices upon sixty (60) days written notice.

b. Additional Services. Additional services performed by HP at Customer's request that are not included in Customer's purchased Support will be chargeable at the applicable published service rates for the country where the service is performed. Such additional services include but are not limited to:

g-

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Contract Number

Customer requests for Support after HP's local standard business hours (unless Customer has specifically purchased after-hours coverage for the requested Support);

Customer requests for repair for damage or failure attributable to the causes specified in sub-section A.7.d of the HP Base Terms ("Warranty Exclusions"); and

3. Customer requests for Support where Customer does not, in HP's reasonable determination, meet the applicable prerequisites and eligibility requirements for Support.

c. Local Availability. Support outside of the applicable HP coverage areas may be subject to travel charges, longer response times, reduced restoration or repair commitments, and reduced coverage hours.

d. Invoicing. Invoices for Support will be issued in advance of the Support period. HP Support invoices and related documentation will be produced in accordance with HP system standards. Additional levels of detail requested by Customer may be chargeable.

3. SITE AND PRODUCT ACCESS

Customer shall provide HP access to the Products covered under Support; adequate working space and facilities within a reasonable distance of the Products; access to and use of information, customer resources, and facilities as reasonably determined necessary by HP to service the Products; and other access requirements described in the relevant Transaction Document. If Customer fails to provide such access, resulting in HP's inabi lity to provide Support, HP shall be entitled to charge Customer for the Support call at HP's then current published service rates. Customer is responsible for removing any Products ineligible for Support to allow HP to perform Support. If delivery of Support is made more difficult because of ineligible Products, HP will charge Customer for the extra work at HP's published service rates.

4. STANDARD SUPPORT PRODUCT ELIGIBILITY

a. Minimum Configuration for Support. Customer must purchase the same level of Support and for the same coverage period for: all Products within a minimum supportable system unit (i.e. all components within a server, storage, or network device) to allow for proper execution of standalone and operating system diagnostics for the configuration.

b. Eligibility. For initial and on-going Support eligibility Customer must maintain all Products and associated hardware and software at the latest HP-specified configuration and revision levels and in HP's reasonable opinion, in good operating condition.

c. Modifications. Customer will allow HP, at HP's request and at no additional charge, to modify Products to improve operation, supportability, and reliability, or to meet legal requirements.

d. Loaner Units. HP maintains title and Customer shall have risk of loss or damage for loaner units if provided at HP's discretion as part of Support or warranty services and such units will be returned to HP without lien or encumbrance at the end of the loaner period.

e. Relocation. Customer is responsible for moving Products. If Customer moves the Products to a new location, HP may charge additional Support fees and modify the response times, and Customer may be required to execute amended or new Transaction Documents. If Customer moves Products to another country, Support shall be subject to availability in the destination country. Reasonable advanced notice to HP may be required to begin Support for some Products

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after relocation.

Contract Number

f. Maximum Use Limitations. Certain Products have a maximum usage limit, which is set forth in the manufacturer's operating manual or the technical data sheet. Customer must operate such Products within the maximum usage limit.

Multi-Vendor Support. HP provides Support for certain non-HP Branded Products. The relevant Transaction Document will specify availability and coverage levels, and govern delivery of multi-vendor Support, whether or not the non-HP Branded Products are under warranty. HP may discontinue Support of non-HP Branded Products if the manufacturer or licensor ceases to provide support for such Products.

g.

5. PROPRIETARY SERVICE TOOLS

HP will require Customer's use of certain system and network diagnostic and maintenance programs ("Proprietary Service Tools") for delivery of Support under certain coverage levels. Proprietary Service Tools are and remain the sole and exclusive property of HP, are provided "as is," and include, but are not limited to: remote fault management software, network Support tools, Insight Manager, Instant Support, and Instant Support Enterprise Edition (known as "ISEE). Proprietary Service Tools may reside on the Customer's systems or sites. Customer may only use the Proprietary Service Tools during the applicable Support coverage period and only as allowed by HP. Customer may not sell, transfer, assign, pledge, or in any way encumber or convey the Proprietary Service Tools. Upon termination of Support, Customer will return the Proprietary Service Tools or allow HP to remove these Proprietary Service Tools. Customer will also be required to:

a. allow HP to keep the Proprietary Service Tools resident on Customer's systems or sites, and assist HP in running them;

b. install Proprietary Service Tools, including installation of any required updates and patches;

c. use the electronic data transfer capability to inform HP of events identified by the software;

d. if required, purchase HP-specified remote connection hardware for systems with remote diagnosis service; and

e. provide remote connectivity through an HP approved communications line.

6. CUSTOMER RESPONSIBILITIES

a. Data Backup. To reconstruct lost or altered Customer files, data, or programs, Customer must maintain a separate backup system or procedure that is not dependent on the Products under Support.

b. Temporary Workarounds. Customer will implement temporary procedures or workarounds provided by HP while HP works on permanent solutions.

c. Hazardous Environment. Customer will notify HP if Customer uses Products in an environment that poses a potential health or safety hazard to HP employees or subcontractors. HP may require Customer to maintain such Products under HP supervision and may postpone service until Customer remedies such hazards.

d. Authorized Representative. Customer will have a representative present when HP provides Support at Customer's site.

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e. Product List. Except as otherwise permitted in a Transaction Document, Customer will create and maintain a list of all Products under Support including: the location of the Products, serial numbers, the HP-designated system identifiers, and coverage levels. Customer shall keep the list updated during the applicable Support period.

f. Documentation. If Customer purchases a Support offering that includes documentation updates, Customer may copy such updates only for systems under such coverage. Copies must include appropriate HP Trademark and copyright notices.

7. SUPPORTED SOFTWARE

Customer may purchase available Support for HP Branded Software only if Customer can provide evidence it has rightfully acquired an appropriate HP license for such Software. HP will be under no obligation to provide Support due to any alterations or modifications to the Software not authorized by HP or for Software for which Customer cannot provide a sufficient proof of a valid license. Unless otherwise agreed by HP, HP only provides Support for the current Version and the immediately preceding Version of HP Branded Software, and then only when HP Branded Software is used with Hardware or Software included in HP-specified configurations at the specified Version level.

8. ACCESSORIES AND PARTS AND MISCELLANEOUS

a. Compatible Cables and Connectors. Customer will connect Products covered under Support with cables or connectors (including fiber optics if applicable) that are compatible with the system, according to the manufacturer's operating manual.

b. Support for Accessories. HP may provide Support for cables, connectors, interfaces, and other accessories if Customer purchases Support for such accessories at the same Hardware service level purchased for the Products with which they are used.

c. Consumables. Support does not include the delivery, retum, replacement, or installation of supplies or other consumable items (including, but not limited to, operating supplies, magnetic media, print heads, ribbons, toner, and batteries) unless otherwise stated in a Transaction Document.

d. Replacement Parts. Parts provided under Support may be whole unit replacements or be new or functionally equivalent to new in performance and reliability and warranted as new. Replaced parts become the property of HP, unless HP agrees otherwise and Customer pays any applicable charges.

e. Service Providers. HP reserves the right and Customer agrees to HP's use of HP-authorized service providers to assist in the provision of Support, provided that HP shall manage and oversee the activities of such service providers and HP shall be responsible for such service providers' compliance with the terms of this Agreement.

9. ACCESS TO HP SOLUTION CENTER AND IT RESOURCE CENTER

a. Designated Callers. Customer will identify a reasonable number of callers, as determined by HP and Customer ("Designated Callers"), who may access HP's customer Support call centers ("Solution Centers").

b. Qualifications. Designated Callers must be generally knowledgeable and demonstrate technical aptitude in system administration, system management, and, if applicable, network administration

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and management and diagnostic testing. HP may review and discuss with Customer any Designated Caller's experience to determine initial eligibility. If issues arise during a call to the Solution Center that, in HP's reasonable opinion, may be a result of a Designated Caller's lack of general experience and training, the Customer may be required to replace that Designated Caller. All Designated Callers must have the proper system identifier as provided in the Transaction Documents or by HP when Support is initiated. HP Solution Centers may provide support in English or local language(s), or both.

c. HP IT Resource Center. HP IT Resource Center is available via the worldwide web for certain types of Support. Customer may access specified areas of the HP IT Resource Center. File Transfer Protocol access is required for some electronic services. Customer employees who submit HP Solution Center service requests via the HP IT Resource Center must meet the qualifications set forth in sub-section C.9.b above.

d. Telecommunication Charges. Customer will pay for all telecommunication charges associated with using HP IT Resource Center, installing and maintaining ISDN links and Internet connections (or HP-approved alternatives) to the HP Solution Center, or using the Proprietary Service Tools.

10. SERVICE LEVEL AGREEMENTS.

HP shall provide the Support Services to Customer in accordance with and agrees to and accepts the agreements set out in Service Level Agreements attached hereto as Attachment E.

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D. HP PROFESSIONAL SERVICES TERMS (With Deliverables)

This section contains additional provisions related to Professional Services (with Deliverables) and forms part of the HP Customer Agreement.

1. PROFESSIONAL SERVICES

HP will perform the Professional Services and provide Deliverables as described in the relevant Statement(s) of Work and other Transaction Documents.

2. PROJECT MANAGERS

Each party will appoint an individual who will serve as their primary representative ("Project Manager"). Each Project Manager will:

a. have overall responsibility for managing and coordinating the performance of the party it represents in a prompt and professional manner; and

b. meet with the other party's Project Manager at regular intervals to review progress and resolve any issues relating to the Professional Services.

When HP's personnel are at Customer's premises and when Customer's personnel are at HP's premises, the Project Managers will be available at all times or will designate an alternate with the same level of authority and project knowledge in the event of unavailability. Either party may change its Project Manager at any time upon written notice

3. CONSULTANTS

HP shall cause its Consultants who are performing Services at a Customer location or a Customer Affiliate's location, to only perform such Services and not to perform services for any other HP customer.

4. CHANGES

Requests by Customer and recommendations by HP for changes to the Professional Services or Deliverables will become effective only upon agreement by the parties in writing and are subject to any HP and Customer change management procedures set forth in the applicable Statement of Work.

5. INTELLECTUAL PROPERTY

a. License to HP. Only to the extent necessary for HP to perform its obligations under this Agreement, Customer grants HP a non-exclusive, worldwide, royalty-free right and license (or sublicense) to use, copy, make derivative works of, distribute, display, perform, and transmit Customer's and third parties' intellectual property rights in software and other materials provided by Customer to HP in connection with this Agreement.

b. Deliverables and License to Customer. Neither party will gain by virtue of this Agreement any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by the other. Except as specifically modified in a provision of Statement of Work which references this Section, HP will retain exclusive ownership in all Deliverables created hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed under this Agreement. HP hereby grants Customer a non-exclusive, perpetual, royalty-free, non-transferable right and license to use the Deliverables solely in the country(ies) in which Customer does business and solely for Customer's internal use. To the extent that the Deliverables include Software, Customer's license as set forth above is to the object

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code version of the Software only. HP may terminate Customer's license in the Deliverables upon notice for failure to comply with the terms of this Agreement. In the event of termination of Customer's license, Customer will immediately destroy or return to HP the affected Deliverables and all partial or complete copies thereof, or provide satisfactory evidence of their destruction to HP. Notwithstanding the license grants set forth in this sub-section 4.b, any third party Software incorporated into any licensed Deliverable will be subject to the l icense terms applicable to such Software and set forth in the Statement of Work.

c. Third Party Licenses. Except for software and materials provided by Customer, if HP uses any third party software or materials in connection with the Professional Services, HP shall be responsible to obtain all rights and licenses necessary for HP to use such materials in the performance of the Professional Services and, if incorporated by HP into the Deliverables, all rights and licenses necessary for Customer to use the Deliverables consistent with the rights granted in Section 5(b) above. If Customer provides third party software or materials to be used by HP in connection with the Professional Services, Customer shall be responsible to obtain all rights and licenses necessary for HP to use such materials in performance of the Professional Services.

6. FEES

Customer will pay to HP the fees specified in the applicable Statement of Work or other Transaction Documents. In addition, Customer will be responsible for those additional transaction charges invoiced by HP such as travel and travel-related expenses, unless otherwise stated in the Transaction Documents. Where Deliverables are developed on a time-and-expense basis, Customer will pay for all time expended by HP in achieving acceptance for such Deliverables, unless the Deliverable fails to meet the Warranty set forth below.

7. ACCEPTANCE

Acceptance of Professional Services will occur upon HP's performance of the Professional Services. For Deliverables requiring acceptance testing, the parties will develop and agree upon an Acceptance Test Plan ("ATP"). If the parties are unable to reach agreement on the ATP within thirty (30) days of the effective date of the applicable Statement of Work, either party may terminate that Statement of Work by giving written notice to the other party. In the event of such termination, HP will be entitled to payment for all work performed prior to the date of such termination.

HP will notify Customer when a Deliverable is ready for acceptance testing and such testing will commence within ten (10) business days of such notice. Within five (5) business days after completion of testing, Customer will either sign the acceptance report provided by HP or, if HP was unable to complete the ATP, notify HP in writing detailing any failure of the Deliverable to conform to the acceptance criteria in the ATP. Within a reasonable time, HP will correct any such non-conformance and redeliver the Deliverable for a repeat of the steps in the ATP process necessary to verify conformance with the ATP. In the event that HP is unable to remedy the non-conformance, Customer may, as its sole and exclusive remedy, either:

1. accept the Deliverable without warranty, on an "AS IS" basis, subject to a reasonable price adjustment; or

2. return the affected Deliverable to HP and receive a refund of amounts paid to HP for such Deliverable.

Deliverables will be accepted when Customer so advises HP or at the end of five (5) business days if

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Customer fails to give HP written notice of non-conformance within that time period. However, if Customer, prior to either event, uses the Deliverable for productive use, it will be deemed accepted upon such use. If acceptance testing is delayed for reasons attributable to Customer, acceptance will be deemed to occur on the 10th day after notice by HP that a Deliverable is ready for acceptance testing. If a Deliverable is provided on a time-and-expense basis, all corrections will be performed by HP at Customer's expense.

Nothing herein shall relieve HP of its obligations or extend its time for performance.

The making of progress payments or Professional Service payments or acceptance of a portion of a Deliverable does not constitute acceptance of the entire Deliverable where the acceptance is in phases.

8. WARRANTY

HP shall provide the Professional Services in a professional and workmanlike manner. HP will perform Professional Services in accordance with generally accepted commercial practices and professional standards. HP will re-perform any Professional Services not performed in accordance with the foregoing warranty at no charge to Customer, provided that HP receives notice from Customer within sixty (60) days after such Professional Services were performed.

HP warrants that the final Deliverable provided to Customer will substantially conform to the relevant acceptance criteria for such Deliverable as set forth in the applicable Statement of Work for a period of thirty (30) days following the date of acceptance. If Customer provides written notice to HP, within thirty (30) days after acceptance of the Deliverable, of any non-conformance with this warranty, HP will attempt to correct any non-conformance confirmed by HP within a reasonable time at no cost to Customer. Customer will provide HP with sufficient information to permit HP to confirm such non-conformance, and will provide assistance and cooperation as reasonably requested by HP to permit HP to attempt to correct such non-conformance. If HP is unable to comply with the foregoing obligations, HP will refund the price stated as applicable to that Deliverable or a portion of the price stated in the Statement of Work reasonably allocable to that Deliverable upon Customer's prompt return of the affected Deliverable to HP. This will be Customer's sole and exclusive remedy for a breach of the foregoing warranty.

9. WARRANTY EXCLUSIONS

HP will not be responsible for a breach of warranty that would not have occurred but for:

a. changes to a Deliverable that were implemented by Customer or a third party without HP's prior written authorization;

b. changes to software or hardware with which the Deliverable operates or interfaces, or on which the Deliverable or the Professional Services otherwise rely, made by Customer or a third party other than HP, including the vendors of such software or hardware without HP's prior written authorization;

c. errors or defects in software or hardware with which the Deliverable operates or interfaces, or on which the Deliverable or Professional Services otherwise rely (excluding HP Branded Hardware and Software provided in connection with the Deliverable); or

d. use or operation of a Deliverable or any portion thereof otherwise than as permitted or described in the Statement of Work pursuant to which the Deliverable is delivered to Customer.

10. WARRANTY DISCLAIMER

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Contract Number

HP DOES NOT WARRANT THAT DELIVERABLES WILL BE ERROR FREE OR EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT OR A STATEMENT OF WORK THAT THEY WILL BE COMPATIBLE WITH PRESENT OR FUTURE PRODUCTS OF HP OR OTHER VENDOR.

11. INTELLECTUAL PROPERTY INFRINGEMENT

a. Claims. HP will defend Customer and its Affiliates and each of their respective officers, directors, principals (partners, shareholders or holders of an ownership interest as the case may be), employees and agents or settle third party claims against Customer brought in the country where the Professional Services or Deliverables are provided under this Agreement and arising out of or relating to:

1. HP's infringement of any trade secrets, copyrights, trademarks, service marks, trade names or any other intellectual property right alleged to have occurred, related to the Professional Services or the Deliverables; or

2. HP's knowing infringement of the patent of a third party in connection with the performance of the Professional Services or the Deliverables.

HP will pay indemnity claim defense costs, including reasonable attorneys' fees and court costs, HP—negotiated settlement amounts, and court-awarded damages.

b. Procedures. The protection provided in this sub-section 11 will apply provided that Customer:

1 promptly notifies HP of any matters in respect of which the protection may apply and of which the Customer has knowledge, provided, however, that HP shall not be relieved of its indemnity obligations based upon Customer's delay in notifying (or failure to notify) HP of any applicable matter, except to the extent that such delay or failure prejudices HP's defense of such matter; and

2. cooperates with HP in the defense or settlement of the claim.

HP will have full opportunity to control the response thereto and the defense thereof, including without limitation any agreement relating to settlement. Customer may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice.

c. Exclusions. HP has no obligation for any claim of infringement to the extent arising from:

1. any third party materials;

2. HP's compliance with or use of Customer's information, technology, designs, specifications or instructions, including those incorporated into any Statement of Work or Deliverable;

3. modification of the Deliverables by Customer or a third party;

4. use of the Deliverables in a way not indicated in the Statement of Work or in any specifications or documentation provided with such Deliverable; or

5. use of the Deliverables with products not supplied by HP, unless otherwise specified by HP in the applicable Statement of Work.

d. Infringement. In the event that an infringement claim regarding a Deliverable or Professional Service appears likely, HP may at its sole discretion, in addition to its infringement indemnity obligations contained herein, and as Customer's sole and exclusive remedy, either:

(Version# 1.1) HP Customer Agreement HP Confidential Page 27 of 39

i nvent Contract Number

1. obtain for Customer the right to use the infringing Deliverable or for HP to continue to provide the Professional Service;

2. modify the infringing Deliverable or Professional Service so that it is no longer infringing;

3. obtain and substitute a functionally similar deliverable or service that is not infringing; or

4. if none of the foregoing alternatives are reasonably available, refund a pro rata portion of the charges paid by Customer for the infringing Deliverable upon return of the same to HP or discontinue the Professional Service and refund the unused portion of the fees associated with such Professional Service.

e. Sole and Exclusive Remedy. This sub-section 11 states HP's entire liability for claims of intellectual property infringement related to Deliverables.

12. AUTHORIZATION TO INSTALL SOFTWARE

During the provision of Professional Services, HP may be required to install copies of third-party or HP Branded Software and be required to accept license terms accompanying such software ("Shrink-Wrap Terms") on behalf of Customer. Shrink-Wrap Terms may be in electronic format, embedded in the software, or contained within the Software documentation. Customer hereby acknowledges that it is Customer's responsibility to review Shrink-Wrap Terms at the time of installation, and hereby authorizes HP to accept all Shrink-Wrap Terms on its behalf.

13. TERMINATION

Except as provided below, termination of this Agreement or any Statement of Work shall not affect any other Statements of Work then in effect, unless the parties specifically agree in writing. This Agreement shall continue to govern such Statements of Work until they are terminated or performance has been completed. Upon termination of this Agreement by either party due to the other party's breach under Section A.12(b) or the other party's financial condition under Section A,12(d), all Statements of Work shall automatically terminate.

Upon termination of any Statement of Work, Customer will pay HP for all Professional Services performed and charges and expenses incurred by HP up to the date of termination, and Customer will receive all work in progress for which Customer has paid. Should the sum of such amounts be less than any advance payment received by HP, HP will refund the difference within thirty (30) days of such termination."

Unless otherwise stated, each Statement of Work shall operate independently of other Statements of Work.

Upon termination of any Statement of Work, Customer wil l pay HP for all Professional Services performed and charges and expenses incurred by HP up to the date of termination, and Customer will receive all work in progress for which Customer has paid. Should the sum of such amounts be less than any advance payment received by HP, HP will refund the difference within thirty (30) days of such termination.

14. DEPENDENCIES

Customer will comply with the general obligations specified in this Agreement, together with any specific Customer obligations described in the relevant Transaction Documents, in a timely manner. Customer acknowledges that HP's ability to deliver the Professional Services is dependent upon Customer's full

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123 invent Contract Number

and timely cooperation with HP, as well as the accuracy and completeness of any information and data Customer provides to HP.

15. SIMILAR SERVICES

Nothing in this Agreement will prohibit HP from providing Professional Services similar to those provided hereunder to other customers so long as no Customer Confidential Information is used in the provision of such services. Nothing in this Agreement will prohibit Customer from engaging third-parties to provide to it or its Affiliates services similar to the Professional Services provided by HP hereunder.

16. HIRING OF EMPLOYEES

Customer agrees not to solicit, or make offers of employment to, or enter into consultant relationships with, HP employees or consultants involved, directly or indirectly, in the performance of this Agreement within a one (1) year period of the termination or expiration of this Agreement. Customer shall not be prevented from hiring any such employee or consultant who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to such HP employees or consultants. HP's PSG mobility software group agrees not to solicit, or make offers of employment to, or enter into consultant relationships with, Customer's employees or consultants involved, directly or indirectly, in the performance by HP of Professional Services under this Agreement within a one (1) year period of the termination or expiration of this Agreement. HP shall not be prevented from hiring any such employee or consultant who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to such Customer employees or consultants. Notwithstanding the foregoing, the following shall not be considered solicitation which is prohibited by this section: (a) any solicitation through the placement of general employment advertising, internet postings or other publication for general circulation or (b) the unilateral contact of HP that is initiated by an employee of Company seeking employment with HP.

17. PUBLICITY

Neither party will publicize nor disclose to any third party without the consent of the other party either the price or other terms of this Agreement or the fact of its existence and execution, except as may be necessary to comply with other obligations stated in this Agreement. Neither party shall use the name of the other party or the name of the other party's Affiliates or any trademark, logo or trade name of the other party or the other party's Affiliates, without the prior written consent of the other party which shall not be unreasonably withheld.

18. EMPLOYEE/CONSULTANT INDEMNITY

a. HP shall, at its expense, defend, indemnify and hold harmless Customer and its Affiliates and their respective officers, directors, principals (partners, shareholders or holders of an ownership interest as the case may be), agents and employees (each a "Cox Indemnitee" and collectively "Cox Indemnitees") from and against any third party claims, judgments, losses, damages, demands, payments, fines, expenses (including attorneys' fees and court costs) and recoveries of every nature and description incurred by a Cox Indemnitee arising out of or relating to any personal injury and/or bodily injury (including death) or property damage to the extent caused by the negligence or willful misconduct of HP, its employees, its agents or its contractors in connection with this Agreement. The monetary limitation in Section A.11(a) of this Agreement do not limit HP's obligations under this Section.

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inv-ont Contract Number

b. Customer shall, at its expense, defend, indemnify and hold harmless HP and its Affiliates and their respective officers, directors, principals (partners, shareholders or holders of an ownership interest as the case may be), agents and employees (each an "HP Indemnitee" and collectively "HP Indemnitees") from and against any third party claims, judgments, losses, damages, demands, payments, fines, expenses (including attorneys' fees and court costs) and recoveries of every nature and description incurred by an HP Indemnitee arising out of or relating to any personal injury and/or bodily injury (including death) to the extent caused by the negligence or willful misconduct of Customer, its employees, its agents or its contractors in connection with this Agreement. The monetary limitation in Section A.11(b) of this Agreement do not limit Customer's obligations under this Section

(Version# 1.1) HP Customer Agreement HP Confidential Page 30 of 39

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Attachment A

HP MOBILE MANAGEMENT CENTER (MMC)

TECHNICAL AND FUNCTIONAL SPECIFICATIONS

Contract Number

Overview The HP Mobile Management Center (MMC) is an OMA DM (Open Mobile Alliance Device Management) standards-based solution for mobile device management. The solution enables an operator to gather a comprehensive profile of subscribers, merging both real-time subscriber and device information, providing visibility and control to deliver a unique mobile experience for both consumers and enterprises. The HP MMC is architected in a modular manner using industry-standard web services, allowing operators to customize the solution to meet their specific business goals.

Feature highlights include:

• Configuration management - Operators can help improve the user experience and adoption of wireless data services through automatic OTA (over-the-air) provisioning of device parameters, helping ensure that services work without user intervention.

• Diagnostics - Gather and view key device parameters in real-time such as service settings, signal strength, OS version, and resident software applications. Resolve device issues automatically and obtain a summary of diagnostics results.

• Firmware over-the-air (FOTA) - Provide complete lifecycle and deployment management for software and firmware updates. The solution automatically determines the required update(s) based on real-time subscriber/device information and permissions.

• Standards support • OMA DM v1.1.2 • OMA DM v1.2 • OMA DL v1.0 • FUMO v1.0

(Version# 1.1) HP Customer Agreement HP Confidential Page 31 of 39

invont

System Requirements

Minimum hardware specifications • HP ProLiant DL 380 G5 Server • 2 x Dual Core Intel Xeon 5100/5000 CPUs • 4 GB RAM • 72GB+ Minimum Storage

Third-party software specifications • Red hat Linux AS v4.0 or greater • BEA Weblogic Server Advantage Edition v8.1SP6 • Oracle 10g (10.2.x) Standard

Contract Number

Contents • Installation files for HP Mobile Management Center. Installation files enable the deployment of the

MMC server and applicable modules on one or more nodes allowing for scaling the system as needed to support traffic demands — Downloadable through secure download site provided by HP on contract execution

• Documentation

Documentation • HP Mobile Management Center Administration Console Management Guide • HP Mobile Management Center Help Desk Console User Guide • HP Mobile Management Center Installation Guide • HP Mobile Management Center Web Services API Document • HP Mobile Management Center Release Notes

(Version# 1.1) HP Customer Agreement HP Confidential Page 32 of 39

invant

Attachment B

HP PROFESSIONAL SERVICES AND

SUPPORT SERVICES

HP Professional Services

Contract Number

In the event that HP Professional Services not covered by the Annual Support Fee in Table 2 above are requested, such HP Professional Services will be performed at HP's then-current standard rates. All HP Professional Services to be delivered will be specified in a separate Statement of Work signed by the parties.

Because the T&M Work will be performed on a time and materials basis, Customer acknowledges and agrees that HP cannot guarantee that HP Professional Services resources will be available at the time of Customer's request; however HP will use commercially reasonable efforts to have HP Professional Services resources available within a reasonable period of time of Customer's request. In the event that Customer would like HP Professional Services resources to perform more T&M Work in excess of the T&M Maximum at the hourly rate, such additional T&M Work, and the associated fees, will be set forth in a Change Request signed by authorized representatives of both parties; provided that such additional T&M Work must be purchased in minimum increments of forty (40) hours.

HP Support Services

Three Step Support Process: Customer shall observe the following 3 step support process to maximize response and restoration time.

STEP 1: Customer shall promptly report Priority 1-3 Events to 1-BOO-HP-Invent or 800-474-6836. These contact details are subject to change on reasonable advance notice.

STEP 2: For all reported Events and Priority 4 Issues, Customer shall: (a) promptly provide all reasonable assistance necessary in order to assist HP in developing a Workaround; (b) enable reproduction of the Priority 1-3 Event or Priority 4 Issue, including listing(s) of output; details of operating conditions; electronic data files created and extracted using the Utility Tool(s); and (c) provide a reasonable number of Enabled Devices that can access the Service.

STEP 3: Prior to implementation, Customer may test any Event Correction on a Test System to confirm that it is fit for implementation on Customer's Primary System or Additional System. If Customer chooses to bypass testing of any Event Correction, then the HP shall not be responsible for any Events that would have been found with regression testing of Event Correction.

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Targeted Response Times —HP will use commercially reasonable efforts to contact Customer after receipt of Customer's notice of an Event as follows:

Priority Event/Issue 1 2 3

Mean Response Time 30 minutes

4 hours 1 business day

Exclusions From Support Services -- Support Services do not include:

Support to Cox subscribers and end users; any failure of the Software caused by:

improper use, alteration, or damage of the Software by Customer or persons other than HP employees;

any changes (including, but not limited to customizations, modifications, alterations or additions made by any entity) to the Software not made by HP employees;

interfacing between the Software and operating systems, database software and/or other software not approved in writing by a HP employee; or

Customer's failure to implement any Release; or use of Software: (a) on hardware that has not been approved in writing by HP; (b) on a version of

an operating system that has not been approved in writing by HP; (c) with a third party software patch that has not been approved in writing by HP; (d) on a computer server other than the Primary System, Additional System or Test System; or (e) on a system that has not passed the HP Production Readiness Assessment.

(Version# 1.1) HP Customer Agreement HP Confidential Page 34 of 39

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Attachment C

HP MANAGED SERVICES

Supp*rt Definition

Contract Number

HP will provide onsite operational support to Customer as described in this section. The Onsite Support will provide operational support for the HP Software and items described below. Unless agreed to in writing, any Onsite Support that is provided to Customer will be limited to normal business hours (9a.m. to 5 p.m.), during a normal work week (Monday through Friday), excluding Hewlett-Packard designated holidays. This position is scheduled to begin on June 22nd. 2009 or otherwise agreed by Customer and HP

(a) Provide one Full-Time Equivalent (FTE) to support the production system running the Hewlett-Packard Mobile Management Center (MMC) software;

(b) Track and manage all operational problem reports in the HP internal trouble report and tracking system;

(c) Provide Support Services for the production environment of the Stack;

(d) Perform Software operational maintenance — logs, scripts and application processes;

(e) Perform operational coordination of Event Corrections of the Software through Customer;

(f) Provide operational coordination of Event response, detection, isolation, mitigation;

(g) Coordinate Event Correction of Software within HP;

(h) Coordinate Root Cause Analysis and reporting within HP for any Priority 1 events;

(i) Operationally manage the Software and monitoring scripts and tools for other software components that are included as part of the Stack;

(j) Conduct configuration management of the HP Software;

(k) Coordinate with Customer for capacity augmentations and Software Solution reconfigurations;

(I) Implement Patch Release and operational updates to the Software;

(m)Operate the production environment utilizing the HP Software as mutually agreeable upon between Customer and HP. The production environment of the HP Software must be running a current version, or a version within 2 Patch Release from the most current version made generally available by Hewlett-Packard.

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(n) Develop and verify operational patch methods of procedure ("MOP") verification and development;

(o) Coordinate change management within Customer's operational policies and processes;

(p) Conduct operational production testing of HP software post implementation into production;

(q) Conduct operational performance monitoring and tuning for the Stack as necessary;

(r) Comply with Customer policies and integration with data center processes as mutually agreed to by the parties.

(s) Coordinate with the production environment third party component vendor support organizations (that are part of the Stack) for operational Event Correction and/or Event Resolution.

(t) Support integration of utilities for hardware and software components that are part of the Stack;

(u) Provide a one week training class to Customer resources on proper use and monitoring of the MMC application and best practices;

(v) Provide support for running any bulk jobs involved in the provisioning of devices and will train Customer personnel in this process;

Support Reviews

On a weekly basis (or less frequently as agreed by Customer and HP), HP will hold an operational review meeting to discuss the previous week's Events, unplanned downtime, incident prioritization, open Events or issues, process improvement and planned activities for the applicable production environment. During these meetings, HP will review with Customer root cause analysis reports, system plans, status of open Events and issue reports (Priority 1 to Priority 4) and any performance measured against the Support Service terms. Customer and HP will discuss and reach mutual agreement on those Events that will affect availability of the Software.

Items excluded from HP Onsite Support

(a) After hours support (includes time not referenced in the above section), Customer responsible for

following normal support procedures for after hour support;

(b) Database operations, management and support provided by Customer;

(c) Network components including routers, switches, firewalls, load balancers, etc.. maintained by

Customer;

(d) Server operating systems and any 3rd party software not explicitly covered in Section 1 above;

(e) Support for any lab systems are not covered by this agreement, this includes any device certification

with OEM manufactures in the lab environment;

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us

Plant and Work Rules

Contract Number

For onsite operational support to Customer at a Customer facility, HP will make all persons performing services aware of Customer's security philosophy, end user data policy, and plant and work rules (collectively "Policies"). The Policies are specified as follows:

Wireless Product Security Philosophy. p

(Version# 1.1) HP Customer Agreement

End User Data Policy_12_4_2007. pc

plant and work rules 2008. pdf

HP Confidential Page 37 of 39

Eha in ye nt

Attachment D

PRICING FOR SOFTWARE LICENSES AND BASE SUPPORT

Contract Number

Pricing includes an annual license fee for the MMC OMA DM server framework and the Configuration, Diagnostics, FOTA and Application Management modules for a period of three (3) years ("Pricing Term"). The annual license fee is a discounted rate based upon the limited number of initial Subscribers with a maximum Subscriber capacity, or cap, up to 500,000 Subscribers. Subscriber means an individual device defined by a single MSN or a unique MEID. Also included in this pricing is the annual software support and maintenance fee and device interoperability for up to 6 devices. Please refer to the table below for more details.

Upon expiration of the Pricing Term, this Agreement will automatically renew for an additional one year terms, unless written notice is given by one party to the other as to its intention not to renew this Agreement at least thirty (30) days prior to the end of the Pricing Term. HP reserves the right to change Customer's pricing after the Pricing Term.

If Customer exceeds the 500,000 Subscribers cap as set forth in this Attachment D, the parties will negotiate in good faith any additional applicable pricing increases based upon HP's then-cu rrent pricing.

The professional services costs for deploying the HP solution are included in the SOW between HP and Cox.

Product Line/Part Number

BQ-FB109AAE

BQ-FB184AAE

BQ-FB185AAE

(Version* 1.1) HP Customer Agreement

Description

HP Mobile Management Center Server License

a) Annual software license fee b) Includes a subscriber capacity of up

to 500,000 subscribers

HP MMC a) b)

HP MMC a) b)

User Lic FOTA Annual software license fee Includes a subscriber capacity of up to 500,000 subscribers

User Lic Diagnostics Annual software license fee Includes a subscriber capacity of up

Price

$152,000

$110,000

$65,000

HP Confidential Page 38 of 39

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BQ-UM152E

BQ-UJ588A

Total Software Licenses and Support :

to 500,000 subscribers

HP 1 year 24/7 Unlimited MMC Server License Software Support

a) 14% of license fees (net)

HP Device Interoperability Certification Per 6 Units

a) Interoperability Certification for up to 6 devices

Contract Number

$45,780

$61,500

$372,780

BQ-HF507A1 Installation/Deployment Costs $483,968 a) Based on the agreed upon SOW

BQ-HF507A1 Managed Services $375,000 a) See Attachment C for description of

services provided

(Version# 1.1) HP Customer Agreement HP Confidential Page 39 of 39

Exhibit B

Exhibit C

Exhibit D

Micro Focus Business Support Agreement

This Business Support Agreement (“Support Agreement”) describes the support and maintenance services (“Support”) and the terms and conditions under which Micro Focus will provide the Support to the entity purchasing Support (“you” or “Customer”) from Micro Focus or an authorized reseller. “Micro Focus” or “our” shall mean the Micro Focus legal entity authorized to license the software for which Support is purchased under this Support Agreement (“Software”) in the country in which Support is provided. This Support Agreement applies to all Software products for which Support commences on or after 15 January 2018.

Features SummarySupport features described herein are:

� Online Self-Service Support

� Technical Support

� Software Updates

Online Self-Service SupportOnline self-service support is available around the clock, and allows you to:

� Electronically download the latest Software Updates

� Search our extensive online technical knowledge base for known problems, technical documents, manuals and documentation

� Log, track and update incidents electronically, and provide online incident reporting

� Review the list of Software currently covered by your Support Agreement

� Register to receive email notifications when Software Updates are available

� After your online incident-logging, you will receive an email or phone call from Micro Focus.

Access Online Self-Service Support:With respect to Software previously provided by the former software business of Hewlett Packard Enterprise and now provided by Micro Focus (“SoftwareGrp”), you can access the MySupport portal to get online self-service support at: https://softwaresupport.softwaregrp.com/

For all other Software, you can access online self-service support at: www.microfocus.com/support-and-services/

AgreementMicro Focus Business Support

AgreementMicro Focus Business Support

2www.microfocus.com

Technical Support

Unlimited Incident LoggingYou may log an unlimited number of technical Support incidents to report errors or request product enhancements to the Software.

Defect SupportMicro Focus will use commercially reasonable efforts to correct an error or design failure with the Software that it can reproduce on its support systems. Micro Focus will also use commercially reasonable efforts to address critical vulnerability to malicious attacks or access by providing a Software correction. However, Micro Focus may provide the correction as part of a larger Software Update instead of separately, based on the defect’s prioritization or criticality. Customers may be required to install the most recent Software, fixes, patches, or service packs as part of the troubleshooting and issue resolution process.

Micro Focus may not be able to produce a correction for all defects.

Replacement License KeysFor Software that requires a license key for installation, Micro Focus will make available a replacement key for installing or reinstalling authorized licenses provided the applicable version of the Software is then generally available for distribution by Micro Focus.

Support Delivery LanguagesWorldwide support centers provide you with Support in English and local language access in most major countries. Subject to language knowledge and resource availability, Support may be available in Chinese (Cantonese and Mandarin), French, German, Hindi, Italian, Japanese, Korean, Polish, Portuguese, Russian or Spanish. Support outside of standard local business hours and Support for Vertica, IDOL, Connected Media, Archiving and eDiscovery, Security ArcSight, Atalla, Fortify and Voltage products may be provided in English only.

Escalation ManagementMicro Focus has established formal escalation procedures to help facilitate the resolution of complex Software product issues. If you have reasonable grounds for concern as to whether Micro Focus is dedicating sufficient effort to resolving an issue after Micro Focus's response to a support request, you may first escalate your concern to Micro Focus's local, and then regional, and finally global support management.

Severity Levels and Response Time ObjectivesYou will have the ability to select the Severity Level (as outlined in the table below) that most appropriately reflects your current status. Micro Focus reserves the right to reassign a Severity Level once problem diagnosis has commenced if it determines that such level has been inappropriately classified.

Severity Level1: Critical

Production system is down

2: High

Major feature or function failure

3: Medium

Minor feature or function failure

4: Low

Minor problem

Severity Level Description

Production system is down. The product is inoperable, resulting in a total disruption of work. No workaround is available.

Major functionality failure. Operations are severely restricted, although work can continue in a limited fashion. A workaround is available.

Minor functionality failure. Product does not operate as designed, resulting in a minor loss of usage. A workaround may be available.

There is no loss of service. For example, this may be a request for documentation, general information, or a Software enhancement request.

Table continued on next page

AgreementMicro Focus Business Support

3www.microfocus.com

Severity Level1

1: Critical Production system is down

2: High Major feature or function failure

3: Medium Minor feature or function failure

4: Low Minor problem

S Response Time Objectives

Micro Focus Business Support, Monday–Sunday, 24x7, 365 days per year2

1 hour 3 hours 6 hours 1 business day

Standard Care local business hours and local business days3 4

N/A N/A N/A N/A

Total Care 24X7 (below), will not be available for purchase as of 1 March 2018, but for those customers who subscribe to Total Care 24X7 between 15 January 2018 and 28 February 2018, this Business Support Agreement will solely govern, including the Response Time Objectives set forth (below).

Total Care 24x7 Monday–Sunday, 365 days per year2

1 hour 3 hours 1 business day N/A

Response Time Objectives are typical initial response times to support requests. Micro Focus may not actually provide such response within the Response Time Objectives.

1 Except for SoftwareGrp, any 24x7x365 support will only be provided for Severity 1 issues opened by telephone.

2 Certain Micro Focus products are excluded from 24x7 support. See the Addendum to Business Support Agreement – Products excluded from 24x7x365

3 See the Addendum to Micro Focus Standard Care, for software products that receive 24x7 Support with Standard Care

4 Standard Care is available for all products except Serena and those in SoftwareGrp.

AgreementMicro Focus Business Support

4www.microfocus.com

Software UpdatesMicro Focus will make available Software Updates generally released for the Software during the time period for which you have purchased Support. Software Updates consist solely of the following with respect to Software product releases and corresponding reference manuals and user documentation:

� “Major Version” means a Software product release with significant new or improved functionality within the same Software product bearing the same name, or with a change in delivery model. For a Software product, a Major Version is designated by a change in the number to the left of the decimal point (e.g., from version 5.4 to 6) or a year number (e.g., from 2015 to 2016), and is released for wide distribution. A license to a Major Version of Micro Focus Acu or Extend software products is not included as a Support benefit, and so must be purchased separately.

� "Minor Version” means a Software product release with corrections or minor enhancements to the product capability of the Major Version that do not change the core functionalities or material features of the Software product. A Minor Version is designated by a change in the number to the right of the decimal point (e.g., from 5.3 to 5.4) or a release (R) or month number (e.g., GroupWise 2015 R2), and is released for wide distribution.

� For purposes of this provision, a Suite is a single part number that entitles the customer to multiple individual Software products that together form a complete solution. A Suite product release will take place when there is significant new or improved functionality within any of the individual software products bundled in the Suite. Suite versions are either designated by a change in the number to the left of the decimal point (e.g., from version 5.4 to 6) or a year number (e.g., from 2015 to 2016), or a year and month (e.g., 2016.11), and are released for wide distribution.

� A “Service Pack” means a Software product release for wide distribution which includes multiple corrections, and is designated by a change to the digit to the right of the second decimal (e.g., 5.3.1 to 5.3.2), or a SP# to the right of the second decimal (e.g., 5.3 SP1).

� A “Patch” is a Software product release that includes incremental corrections and is released for wide distribution. A Patch release is designated with IP# or P# to the right of the current release, such as X.X.X IP# or P#, X.X IP# or P#, or X IP# or P#.

� A “Hotfix” means a Software product release created to resolve specific customer problems that is available from technical support. A Hotfix may be designated as X.X.X.#.

Optional Advanced Support ServicesThe following additional options may be available for separate purchase by Customer, and are governed by the terms of this agreement, and, for FlexCare purchases, the FlexCare Support data sheet as well.

� Micro Focus Premium Support and Micro Focus FlexCare Support offer enhanced reactive and proactive support services. Features include designated engineers and account managers who become familiar with your environment.

� Micro Focus FlexCare Credits are a support currency that can be purchased at any time throughout the life of your Business Support agreement, and provide a flexible way to source additional reactive and proactive support services from a menu of standalone pre-packaged support services.

For more information on Micro Focus advanced support offerings, visit:

� For SoftwareGrp: www.microfocus.com/flexcaresupport

� For all other Software: www.microfocus.com/support-and-services/premium-support/

AgreementMicro Focus Business Support

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Additional Terms to the Support AgreementIn addition to the Features Summary, the following Additional Terms to the Support Agreement (“Additional Terms”) apply to the Support provided to you. In the event of a conflict between these Additional Terms and the Features Summary, these Additional Terms take precedence.

1. Software Updates

a. Delivery of Software Updates

When Micro Focus releases Software Updates, they will be made available electronically. You may be able to select from a variety of media types.

b. Installation and Use of Software Updates

Customer is responsible for any installation of Software Updates. Customer will be entitled to install and use a Software Update up to the number of licenses for which the Customer has purchased Support for the Software::

a) a) Subject to the terms of the end user license agreement (including any Additional License Authorizations) provided with or otherwise applicable to the Software Update; or

b) If no end user license agreement (or Additional License Authorization) is included with or otherwise applicable to the Software Update, then subject to the terms of the end user license agreement and Additional License Authorizations applicable to the Software version being updated.

Notwithstanding any terms to the contrary in this Support Agreement, any open source software embedded in or provided with a Software Update is licensed pursuant to the applicable open source license. Software Updates pertaining to the Autonomy IDOL Software product require a prerequisite software migration to the IDOL 10 platform. All Software Updates for Autonomy IDOL will pertain solely to the Autonomy IDOL 10 version.

c. Platform

If the Software is licensed for one specific platform (hardware/operating system combination), a Software Update for such Software is always specific to, and may only be used on, the same licensed platform. A license to use Software on a different platform, or the right to purchase such license at a discount, is not included as a Support benefit.

2. New ProductsA “New Product” means a Software product release with significant changes in core architecture/ features/ functionality which result in its release as a new product. It can fully replace an existing Software product and/or diverge into a material new offering from an existing Software product line/family. A New Product is not included as a Support benefit.

3. Term LicensesA “Term License” means a Software license limited to a fixed period of time. With respect to Term Licenses for SoftwareGrp, Micro Focus provides Support through online self-service Support only. All incidents are logged online. With respect to Term Licenses for all other Software, in addition to online Support, Severity 1 issues may also be opened by telephone.

4. Service ProvidersMicro Focus reserves the right to use third party service providers to assist in the delivery of Support subject to the terms and conditions of this Support Agreement.

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5. Hardware SupportIf you have a Micro Focus Hardware Maintenance on-site agreement for hardware that was purchased with the Software, Micro Focus will log a service request to the hardware support organization on your behalf.

6. Concurrent SupportSoftware Updates

Micro Focus offers Customers the ability to use both a Software Update and the current Software product version for a limited timeframe from receipt of the Software Update at no additional charge (“Update Concurrent Use Period”). For Software Updates from SoftwareGrp, the Update Concurrent Use Period is six (6) months. For all other Software Updates, the Update Concurrent Use Period is 90 days.

Notwithstanding the foregoing, there shall be no Update Concurrent Use Period for the Software listed at www.microfocus.com/support-and-services/mla-product-exclusions and Customer may not have any such Software product and the Software Update concurrently installed.

The Update Concurrent Use Period may not extend beyond the end of Support for the current Software version. Your authorized use of a Software Update is limited to managing the same environment as is currently being managed by the current Software version. At the end of the applicable Update Concurrent Use Period, your license to the prior version of the Software is terminated.

MigrationsFor SoftwareGrp, Support may include authorized Software migrations. “Migrated Software” means the software which results from a Micro Focus authorized migration of a current SoftwareGrp product to a different Software product.

With respect to a Micro Focus authorized Software migration, Micro Focus authorizes you to use both the current Software version and the Migrated Software simultaneously (“Migrated Software Concurrent Use Period”) at no additional charge for the time period specified per the categories below. You will be notified of the migrated software concurrent use period when you are notified of a Micro Focus authorized migration, or please contact your Micro Focus representative or Micro Focus Business Partner with questions:

� Standard: 3 months Migrated Software Concurrent Use Period.

� Advanced: 12 months Migrated Software Concurrent Use Period.

� Complex: 18 months Migrated Software Concurrent Use Period.

� Exceptional: 24 months Migrated Software product version, and for which a successor Software product or product version is commercially available.

The Migrated Software Concurrent Use Period may not extend beyond the end of Support for the current Software version. Your authorized use of Migrated Software is limited to managing the same environment as is currently being managed by the current Software version. At the end of the applicable Migrated Software Concurrent Use Period, your license to the prior version of the Software is terminated.

7. Purchasing and RenewalFor so long as Micro Focus continues to offer Support for a Software product, Customer may, subject to Micro Focus's acceptance, renew Support by delivering a purchase order or executing the quote for the applicable Support fees on or before each Renewal Date (defined herein). SoftwareGrp may discontinue specific Support offerings no longer generally offered by SoftwareGrp upon sixty (60) days’ notice.

Unless there is a signed agreement between Customer and Micro Focus or a Micro Focus approved Customer certification to the contrary, Customer must renew support for all licenses of the Software that it has copied, used, installed, or otherwise exploited. Micro Focus agrees to limit any increases of Support fees to no more than 10% over the previous year’s fees or such greater amount necessary to increase the Support fee to the then-current Support list price. If Customer reduces the number of Software licenses covered by Support, the aforementioned fee increase limit shall not apply.

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If Customer allows Support to lapse or payment of the Support fee for a Renewal Period (defined herein) is not received by the due date, Micro Focus may immediately and without notice suspend provision of Support and Customer will no longer be eligible for the aforementioned limitation on price increases for the current and subsequent years set forth above. Customer may then reinstate Support in accordance with the Return to Support clause below.

8. Return to SupportIf the Software has been on Support and Customer elects not to renew Support or allows Support to lapse for a period of time, then the following back-support and reinstatement fees will be applied in addition to 12 months of go-forward Support based on the greater of Customer’s last annual Support fee or the then-current Support list price for the Software if Customer decides to return to Support:

� Less than one year of Support lapse - Full back-pay Support fee from the date of lapse and a reinstatement fee equal to 20% of the go-forward annual Support fee.

� One year or greater of Support lapse - Full back-pay Support fee from the date of lapse and a reinstatement fee equal to 20% of such back-pay Support fee.

9. Product Support LifecycleUpon general availability to customers, Software products enter Committed Support, which allows access to online self-service Support, Software Updates, technical Support, defect Support, and the ability to submit enhancement requests. Committed Support is either Time Based or Version Based.

� Time Based: Committed Support will be provided for a designated minimum period of time. When a Software product exits the Committed Support period, it enters the Extended Support period. During this period, Customer may access previously released Software Updates, technical Support and Self-Help resources, but may no longer submit defect Support or enhancement requests. For Software Grp, following Committed and Extended Support, the product enters a minimum period of Self-Help Support with Rights To New Versions (“RTNV”). If SoftwareGrp discontinues a product and no successor product is commercially available under Support, SoftwareGrp will provide support for the minimum timeframes indicated in the Micro Focus Software Time Based Support Lifecycle Time Frames table.

� Version Based: Committed Support will be provided for the current and previous Minor versions of the current Major Version and the last Minor Version of the previous Major Version. Software Grp will support the last Minor Version of a Major Version (for example, 6.2) for either (i) twenty-four (24) months from the date when a new Major Version (for example,7.0) becomes generally available or (ii) until the date when the next Major Version (for example, 8.0) becomes generally available, whichever occurs earlier. For Version Based products, when a Software product exits the Committed Support period, it enters the Self-Help Support period. During the Self-Help Support period, Customer may access online self-service resources and previously released Software Updates, but may no longer contact technical Support or submit product defect or enhancement requests. If SoftwareGrp discontinues a product and does not make another Minor Version commercially available as an Update, SoftwareGrp will provide full support for twenty-four (24) months from the date of the product’s discontinuance notice.

� Extended Support Plus: For selected Software products, “Extended Support Plus” may be purchased at an additional fee to Support for continued access to Severity Level 1 defect support and critical security Software Updates upon the exit of the product from Committed Support. See more information here at Extended Support Plus.

For SoftwareGrp: Review the details of the Product Support Lifecycle policy and Software product specific end dates here: Product Support Lifecycle policy and Software product specific end dates.

For all other Software: Review the details of the Product Support Lifecycle policy. View the Software product specific end dates.

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10. License Type Upgrades and Quantity UpgradesLicense Type Upgrades and Quantity Upgrades are not part of Support. For purposes of this Support Agreement:

� “License Type Upgrade” means upgrading from one type of license to another. An example would be moving from a site license to an area license.

� “License Quantity Upgrade” means upgrading to a higher count of license. An example would be upgrading from 1000 nodes to 2500 nodes.

11. EligibilityCustomer may purchase available Support only if Customer, if requested by Micro Focus, can provide evidence that it has rightfully acquired an appropriate Micro Focus license for the Software. Micro Focus will be under no obligation to provide Support due to any alterations or modifications to the Software not authorized by Micro Focus or for Software for which Customer cannot provide sufficient proof of a validly obtained license.

12. Local AvailabilitySupport resources may not reside in Customer’s local area. If Micro Focus agrees to provide on-site Support, it will be subject to travel charges, longer response times, reduced coverage hours, and a separate statement of work under Micro Focus's then current professional services terms.

13. RelocationRelocation of any Software is subject to the applicable license terms for the Software and is the responsibility of Customer. Relocation of Support by Micro Focus is subject to local availability, and may result in changes to your Support fees. Reasonable advance written notice to Micro Focus of no less than thirty (30) days shall be required to begin Support after relocation. Customer may be required to execute amended or new documents as a result of relocation.

14. AuditingCustomer agrees to keep, and upon Micro Focus's request, provide records, sufficient to certify Customer’s compliance with this Support Agreement based on the applicable license metric and license terms and conditions for the Software, which may include but are not limited to, serial numbers, license keys, logs, the location, model (including quantity and type of processor) and serial number of all machines on which the Software is installed or accessed or from which the Software can be accessed, the names (including corporate entity) and number of users accessing or authorized to access the Software, metrics, reports, copies of the Software (by product and version), and network architecture diagrams as they may relate to Customer’s licensing and deployment of the Software and associated Support. Within 7 days of Micro Focus's written request, Customer shall furnish Micro Focus, or an independent auditor chosen at Micro Focus's sole discretion (“Auditor”), with a completed questionnaire provided by Micro Focus and with a written statement in a format required by Micro Focus signed by a director of Customer certifying the accuracy of any information provided. Customer shall provide representatives of Micro Focus or Auditor any necessary assistance and access to records and computers to allow an inspection and audit of Customer’s computers and records, during Customer’s normal business hours, for compliance with this Support Agreement.

If Customer has, or at any time has had, unlicensed installation, use of, or access to Software Updates or has otherwise breached the license granted for a Software Update (a “Non- Compliance”), without prejudice to any other rights or remedies Micro Focus may have, including, without limitation, injunctive relief, Customer shall, within thirty (30) days’ notice of such Non-Compliance to Customer, purchase sufficient licenses and or subscriptions and associated Support to cure the Non-Compliance, by paying Micro Focus's then-current (as

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of the date of such additional purchase) list license fees and annual Support fees for such additional licenses, plus Micro Focus's then-current (as of the date of such additional purchase) list term license and Support fees and interest (compounded at 1.5% monthly or the maximum rate permitted by applicable law if lower) for such additional licenses for the time period from the commencement of the Non-Compliance until payment with interest payable even if an invoice was not issued at the time the Non-Compliance occurred. If a material license shortfall of 5% or more is found, Customer shall also reimburse Micro Focus for the reasonable cost of such audit in addition to other amounts due. This section, and the rights and obligations appearing herein, shall expressly survive termination of this Support Agreement.

15. Term and TerminationThis Support Agreement will commence on the date when Micro Focus receives Customer’s order for the Support or, if later, upon delivery (either via physical shipment or making the Software available for download) toCustomer of the Software. This Support Agreement will continue for an initial term of one (1) year unless a different initial term is agreed to in writing by the parties (such as in a separately executed master agreement). Subject to section 19 below, this Support Agreement will be renewed at the end of each term (the “Renewal Date”) for a period of one (1) year, or a different period if agreed to in writing by the parties (“Renewal Period”)unless either party gives notice in writing at least sixty (60) days prior to the end of the then current term that it does not wish to renew. In addition to and without waiving any other available remedies, either party may terminate this Support Agreement upon written notice to the other for a material breach that is not cured within sixty (60) days of notice, receipt of which will be deemed to be three (3) business days following the deposit of such notice with a recognized courier. If Customer is more than ten (10) business days late in making payment, Micro Focus may suspend Support until payment is made. Upon termination of the end user license for a Software product under Support, this Support Agreement shall also automatically be terminated in relation to that Software product.

16. ExclusionsMicro Focus is not obligated to provide Support under circumstances resulting from:

� Improper site preparation, or site or environmental conditions that do not conform to Micro Focus site specifications;

� Customer’s non-compliance with Micro Focus's specifications, statements of work or this Support Agreement;

� Customer’s improper or inadequate upkeep of the Software environment;

� Use in conjunction with Customer’s or third-party’s media, software, interfacing, supplies, or other products;

� Modifications not performed or authorized by Micro Focus;

� Any virus, infection worm, or similar malicious code not introduced by Micro Focus; or

� Abuse, negligence, accident, loss or damage in transit, fire or water damage, electrical disturbances, transportation by Customer or other causes beyond the reasonable control of Micro Focus.

17. Use of Micro Focus Service Tools for SupportMicro Focus may require Customer’s use of certain Micro Focus hardware and/or software system and network diagnostic and maintenance programs (“Proprietary Service Tools”) as well as certain diagnostic tools that may be included as part of the Customer’s system, for delivery of support. Proprietary Service Tools are and remain the sole and exclusive property of Micro Focus, or its licensors, are provided “as is”, and may include remote fault management software or network support tools. Proprietary Service Tools may reside on the Customer’s systems or sites. Any open source software embedded in or provided with the Proprietary Service Tools is licensed pursuant to the applicable open source license.

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Customer may only use the Proprietary Service Tools during the applicable Support coverage period and only as allowed by Micro Focus. Customer may not sell, transfer, assign, pledge or in any way encumber or convey the Proprietary Service Tools. Upon termination of this Support Agreement, Customer will return the Proprietary Service Tools to Micro Focus or allow Micro Focus to remove these Proprietary Service Tools.

The Software may contain functionality (“Usage Hub”) that allows Micro Focus to remotely track data related to your use of the Software. The Usage Hub will only be enabled if you configure the Software product to send data to Micro Focus through the user interface. If the Usage Hub is enabled, Micro Focus will use the data transmitted for the following purposes: (i) to help the Micro Focus Support team handle support incidents more efficiently; (ii) to provide guidance to you regarding how to optimize your use of the Software product; and (iii) to make available reports with entitlement and consumption information. The data collected via the Usage Hub will not contain any Personal Data (as defined herein).

In order for Micro Focus to provide Support, Customer agrees to perform the following as needed:

a) Allow Micro Focus to keep the Proprietary Service Tools resident on Customer’s systems or sites during the troubleshooting process and assist Micro Focus in running them;

b) Install updates and patches to Proprietary Service Tools;

c) Use the electronic data transfer capability to inform Micro Focus of events identified by the Software;

d) Utilize Micro Focus-specified remote connection hardware for systems with remote diagnosis service;

e) Provide remote connectivity through an approved communications line;

f) Data Backup - To reconstruct lost or altered Customer files, data or programs, Customer must maintain a separate backup system or procedure that is not dependent on the Software;

g) Temporary Workarounds - Customer will implement temporary procedures or workarounds provided by Micro Focus while Micro Focus works on permanent solutions;

h) Notify Micro Focus if Customer uses Software in an environment that poses a potential health or safety hazard to Micro Focus employees or subcontractors. Micro Focus may require Customer to maintain the Software under Micro Focus supervision and may postpone service until Customer remedies such hazards;

i) Create and maintain a list of all Software under Support including the location of the Software and coverage levels. Customer shall keep the list updated during the applicable Support period; and

j) Include appropriate Micro Focus trademark and copyright notices, for any Micro Focus documentation that has been copied.

18. PaymentSupport fees are non-refundable and Customer hereby agrees to pay all such fees by the later of (i) 30 days from the date of invoice, or (ii) for fees for a Renewal Period, by the Renewal Date. All fees shall be paid in the currency indicated on the invoice. Late payments will accrue interest at the rate of 1.5% per month compounded or, if lower, the highest rate permitted by law. Micro Focus shall have the right to recover from Customer any collection costs (including attorney s fees) incurred by Micro Focus as a result of any late payment. The fees are exclusive of all applicable taxes. Customer will pay and bear the liability for taxes associated with this Support Agreement, including sales, use, excise, and added value taxes but excluding taxes based upon Micro Focus's net income, capital, or gross receipts, or any withholding taxes imposed as required by law. If Customer is required to withhold taxes, it will furnish Micro Focus with receipts and documentation substantiating such payment. If Micro Focus is required by law to remit any tax or duty on Customer’s behalf, Customer agrees to reimburse Micro Focus within 30 days after notification in writing of such remittance. Customer will provide Micro Focus with valid tax exemption certificates in advance of any remittance otherwise required to be made by Micro Focus on Customer’s behalf where such certificates are applicable.

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19. ChangesMicro Focus may, upon written notice prior to any Renewal Period, discontinue Support for a product, alter the prices as per clause 7 above, or alter terms for Support in advance of such new Renewal Period. Any such discontinuance or alterations will be deemed to amend this Support Agreement, effective beginning the next Renewal Period.

20. Limitation of liabilitya. NOTHING HEREIN SHALL LIMIT EACH PARTY´S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY

RESULTING FROM ITS NEGLIGENCE, OR TO ANY EXTENT NOT PERMITTED BY LAW.

b. SUBJECT TO CLAUSE 20(A) ABOVE, NEITHER MICRO FOCUS NOR ITS SUPPLIERS SHALL BE LIABLE FOR:

i. INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR DAMAGES, OR

ii. ANY REGULATORY FINES, OR LOSS OF PROFITS, BUSINESS, OR DATA, WHETHER DIRECTLY OR INDIRECTLY ARISING UNDER OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR DAMAGES.

c. SUBJECT TO CLAUSE 20(A), ANY LIABILITY OF MICRO FOCUS OR ITS SUPPLIERS SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT PAID BY CUSTOMER FOR THE CURRENT SUPPORT PERIOD FOR THE SOFTWARE (NOT TO EXCEED 12 MONTHS), INCLUDING ANY OPTIONAL SUPPORT SERVICES DURING THAT PERIOD. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING CONTRACT, WARRANTY BREACH, OR TORT.

21. Warrantiesa. Software Warranty: The warranty terms applicable to the Software supported under this Support Agreement are

as provided in the applicable end user license agreement.

b. DISCLAIMER: EXCEPT AS EXPRESSLY DESCRIBED IN AN APPLICABLE END USER LICENSE AGREEMENT, MICRO FOCUS DISCLAIMS AND EXCLUDES ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO SOFTWARE PRODUCTS, SUPPORT, SERVICES AND DELIVERABLES PROVIDED UNDER THIS SUPPORT AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, GOOD TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MICRO FOCUS DOES NOT WARRANT THAT THE SUPPORT, SERVICES OR ANY DELIVERABLES WILL BE WITHOUT DEFECT OR ERROR.

22. ConfidentialityThe party receiving Confidential Information may only use it for the purposes of this Support Agreement and will exercise reasonable care to protect any Confidential Information from unauthorized disclosure or use. The receiving party may disclose Confidential Information only to its employees or agents that are obligated to comply with these confidentiality obligations. "Confidential Information" means any information that (i) is marked in writing as confidential, or (ii) if disclosed orally or visually, is designated orally at the time of disclosure as "confidential,” or (iii) ought reasonably to be regarded as confidential having regard to its nature and purpose. Confidential Information will not include information (a) already in the receiving party’s possession without obligation of confidence; or (b) independently developed by the receiving party; or (c) that becomes available to the general public without breach of this clause; or (d) rightfully received by the receiving party from a third party without obligation of confidence; or (e) released for disclosure with the disclosing party’s written consent. Confidential Information may be disclosed by a party if required to be disclosed by law, regulation, or court order provided that, to the extent permitted by law and reasonably feasible under the circumstances, the receiving party provides to the disclosing party prior written notice of the intended disclosure and an opportunity to respond or object to the disclosure, and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required

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disclosure. These confidentiality obligations will survive 5 years after Support Agreement termination and survive indefinitely as to Confidential Information that constitutes trade secret information under applicable law or contains Personal Data (as defined below). Micro Focus retains the right to use its knowledge and experience (including processes, ideas, and techniques) learned or developed in the course of providing Support.

23. Miscellaneous Provisionsa. Governing Law. If Support is provided in North America, all matters arising out of or relating to this Support

Agreement are governed by the laws of the state of California. If Support is provided in France, Germany, Italy, Japan or Spain, all matters arising out of or relating to this Support Agreement are governed by the laws of the country in which the Support services are provided. In the rest of the world, the laws of England govern all matters arising out of or relating to this Support Agreement. The aforesaid applicable law shall apply without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any suit, action, or proceeding arising out of or relating to this Support Agreement shall be subject to the exclusive jurisdiction of the courts of the country determining the applicable law, except that the courts of the State of California shall have exclusive jurisdiction in North America. Each party agrees to be subject to the above- described jurisdiction and waives any right it may have to object to such venue, including objections based on personal jurisdiction or inconvenient forum.

b. Compliance. Each party will comply with any applicable law or regulation related to its performance under this Support Agreement, including a party’s obligations under data protection laws.

c. Entire Agreement. Unless otherwise agreed in writing by the parties, this Support Agreement constitutes the entire agreement between Micro Focus and Customer with respect to Support, and supersedes any prior representations and communications, whether oral or written. This Support Agreement may be modified only in writing signed by both parties. The terms of any purchase order or similar document will not modify this Support Agreement.

d. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control; however, this provision will not apply to Customer’s payment obligations.

e. Ownership. Micro Focus (or its suppliers) have and will retain title and all ownership rights to the Software, Software Updates, and any other deliverables. This Support Agreement does not prejudice any Micro Focus rights arising from breach of an applicable Micro Focus end user license agreement or Micro Focus intellectual property rights. Provision of Support to Customer does not constitute agreement by Micro Focus that Customer is in compliance with such relevant terms and/or laws.

f. Assignment. Customer may not assign this Support Agreement, or any of its rights or obligations thereunder. Micro Focus may assign all or a portion of this Support Agreement to another company within the Micro Focus group of companies, or to a purchaser of all or substantial part of the assets of Micro Focus.

g. Severability/Waiver. If a provision is invalid or unenforceable, the remaining provisions will remain in effect and the parties will amend the Support Agreement to reflect the original agreement to the maximum extent possible. No Support Agreement term shall be deemed waived and no breach deemed consented to or excused unless such waiver or consent is in a writing signed by a party’s authorized representative. No consent to or waiver of a breach shall constitute a consent to or waiver of any different or subsequent breach.

h. Export. Support, Software Updates, and any other deliverables may be subject to export controls and the trade laws of the U.S. and other countries. The parties agree to comply with all applicable export control regulations.

i. U.S. Government users. This clause is applicable only to U.S. government users. Any software or documentation delivered under this Support Agreement are “Commercial Items” (as defined at 48 C.F.R. §2.101) and licensed to U.S. Government end users only as Commercial Items and only with rights granted pursuant to this Support Agreement and the applicable end user license agreement.

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j. Independent contractors. This Support Agreement creates no relationship of joint venture, partnership, association or principal and agent between the parties. Nothing in this Support Agreement and no course of dealing between the parties creates an employment or agency relationship or partnership between a party and the other party or its employees or agents. Each party shall be solely responsible for all employment benefits for its employees.

24. Personal DataThis provision only applies to the extent Customer provides Personal Data to Micro Focus under this Support Agreement.

a. The following definitions apply to these terms used in this clause:

i. Data Controller: The natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data; where the purposes and means of processing are determined by national or local laws or regulations, the controller or the specific criteria for his nomination may be designated by national or local law.

ii. Data Processor: The natural or legal person, public authority, agency or other body which processes personal data on behalf of the Data Controller.

iii. Data Subject: An identified or identifiable natural person who is the subject of Personal Data, and as otherwise may be defined by national or local data protection law; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity.

iv. Personal Data: Any information relating to a Data Subject.

v. Processing and Process: Any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

b. Customer shall at all times remain the Data Controller of Personal Data that is Processed under this Support Agreement, and Micro Focus shall be Customer’s Data Processor. Micro Focus shall Process the Personal Data solely in accordance with the terms of this Support Agreement and as otherwise instructed by the Data Controller.

c. Customer authorizes Micro Focus to obtain, hold and Process the Personal Data as set forth in and required for the performance of this Support Agreement. Micro Focus agrees that: (i) it shall ensure adequate security measures are put in place to protect the integrity of the Personal Data to the extent as required by the applicable national and/or local data protection laws; and (ii) it shall assist Customer with Data Subject access requests under the applicable national and/or local data protection laws.

d. Customer acknowledges that the provision of Personal Data to Micro Focus is not required in order for Micro Focus to provide Support. Customer warrants that: (i) no Personal Data shall be provided to Micro Focus in connection with this Support Agreement without Micro Focus's express written consent to such disclosure in each instance; (ii) it has obtained the necessary consent of each of the Data Subjects to collect their respective Personal Data and to transfer, and permit Micro Focus to process, such Personal Data in accordance with this Support Agreement and that such consent has not been withdrawn; (iii) it shall immediately inform Micro Focus if it becomes aware that a Data Subject has withdrawn its consent, or such consent has not been validly provided, as obtained in accordance with clause 24.d.(i); (iv) where requested, it shall provide Micro Focus with records showing the above consent; (v) it shall provide Micro Focus with full co-operation in relation to Micro Focus's compliance with Micro Focus's data protection obligations; and (vi) it has complied with all its obligations under any applicable national and/or local data protection laws and any other applicable data protection requirements. Customer

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agrees to indemnify and defend at its own expense Micro Focus against all costs, claims, fines, damages or expenses incurred by Micro Focus or for which Micro Focus may become liable due to any failure by Customer or its employees or agents to comply with any of its obligations under this clause

Addenda to this AgreementDue to the breadth of the Micro Focus software portfolio, certain Micro Focus software products offer additional or different Micro Focus software support services. The latest list of all available addenda can be found at the following location:

Maintenance and Support Agreements

www.microfocus.com

Micro FocusUK Headquarters+44 (0) 1635 565200

U.S. Headquarters301 838 5000877 772 4450

Additional contact information and office locations: www.microfocus.com

6785, EN, 15 July 2018, Rev 2

© 2017 Micro Focus. All rights reserved. Micro Focus and the Micro Focus logo, among others, are trademarks or registered trademarks of Micro Focus or its subsidiaries or affiliated companies in the United Kingdom, United States and other countries. All other marks are the property of their respective owners.