MORPHISEC’S MAINTENANCE AND SUPPORT POLICY IN EFFECT AS OF OCTOBER 2018
Maintenance and Support Policy
Morphisec Information Security 2014 Ltd. and/or Morphisec Inc. and/or any of its affiliates (collectively “Morphisec”) shall provide customer (“Customer”) with Maintenance and Support Services (as defined herein) in accordance with this Maintenance and Support Policy (“Maintenance and Support Policy”).
1.1 Terms in this Maintenance Policy which are capitalized shall have the meanings set forth herein or, if not defined herein, shall have the meanings set forth in the End-User Software License Agreement entered into by the parties (the “EULA”). In the event of any conflict between this Maintenance Policy and the EULA, this Maintenance Policy shall prevail.
1.2 “Maintenance and Support Hours” are Monday through Friday, during business hours as defined in the table below.
|North America||8 a.m. – 6 p.m. USA EST|
|Europe, Middle East, Africa (EMEA)||8 a.m. – 7 p.m. Europe CET|
|Asia Pacific||8:30 a.m. to 6:30 p.m. SGT SST (Singapore Standard Time)|
|India||9:00 a.m. to 6:00 p.m. IST (India Standard Time)|
1.3 “Maintenance and Support Services” are maintenance and support services provided hereunder during the Maintenance and Support Term (as defined below) to fully paid up customers that purchased maintenance and support Services or that their subscription license includes maintenance and support services, as set forth in the applicable Order Schedule.
The Maintenance and Support Services consist of:
(a) reasonable telephone or e-mail support,
(b) reasonable efforts to remotely correct Malfunctions (as defined below) to keep the Software performing substantially in conformance with the documentation, and
(c) provision of releases, modifications and bug fixes made to the Software which are provided from time to time to Morphisec’ general client base at no additional charge beyond the Maintenance and Support Fees (collectively, the “Upgrades”). For the avoidance of doubt (i) Morphisec shall have no obligation to develop any Upgrades, and (ii) software products that are or will be marketed by Morphisec as separate products or subscription licenses for which additional fees are generally charged, are and shall not be considered as Upgrades.
All Maintenance and Support Services will be delivered in English.
Such Maintenance and Support Services shall be provided subject to the Customer Responsibilities as described in Article 4
1.4 “Version” is the generally available Major Release, Minor Release and/or Patch Release of a Software product designated by its number as outlined in Sections 1.5, 1.6 and 1.7 below.
To avoid any doubt, it is at the sole discretion of Morphisec to decide that a release includes additional functionality that does not qualify as a Major Release, Minor Release and/or Patch Release. As a result, Morphisec, at its sole discretion, may charge the Customer for additional charge, beyond the Maintenance and Support Fees, for such additional functionality.
1.5 “Major Release” (or Upgrade) means a generally available release of the Software that contains:
- Functional enhancements and extensions.
- Fixes for high severity and high priority bugs.
A major release is designated by means of a change in the digit to the left of the first decimal point (e.g., ETP 1.0 >> ETP 2.0.)
1.6 “Minor Release” means a generally available release of the Software that:
- introduces a limited number of new features, functionality and minor enhancements.
- includes fixes for high severity and high priority bugs identified in the current release.
A minor release is designated by means of a change in the digit to the right of the decimal point (e.g., ETP 1.0>>ETP 1.1).
1.7 “Patch Release” means a generally available release of the Software that fixes or provides a work around for a high criticality bug.
A Patch release is designated by means of a change in most left digit (e.g., ETP 1.1.0>>ETP 1.1.1).
1.8 “Support Portal” means an online portal located at https://support.morphisec.com/support/home, to which Customer may register and create an account in order to be able to receive the Maintenance and Support Services hereunder.
1.9 A “Malfunction” means a defect, problem or condition that prevents the Software from performing in material conformity with its then current documentation.
1.10 A “Response Time” means the elapsed time between the first contact by Customer’s designated support contact to report a Malfunction and provide a written detailed description of the Malfunction as aforesaid, and the target time within which Morphisec’ Customer Support personnel report back to the Customer’s designated support contact to acknowledge receipt of such report and define an Action Plan for resolution.
1.11 An “Action Plan” is a formal verbal or written description of the tasks to be taken by both Morphisec and Customer to diagnose, triage, and address a support issue, along with an approximate timeframe for the processing and performing of each task. An Action Plan is not a guarantee that the Malfunction will be solved within a certain period, but only an initial estimated work plan to handle a Malfunction.
Morphisec provides Maintenance and Support Services for (i) its most current Version of a Software product (including all Upgrades for such Version) and (ii) the immediately preceding Version of such Software for a period of 12 months from the commercial release date of a new Version.
- MAINTENANCE AND SUPPORT SERVICE RESPONSIBILITIES
3.1 This Agreement applies whether Customer purchased the Maintenance and Support Services directly from Morphisec or through Morphisec’s authorized resellers, distributors or any other sales channels (“Authorized Partner(s)”).
3.2 Provided Customer is in compliance with the EULA and this Maintenance and Support Policy and has paid all applicable Maintenance and Support Fees (as further described under Section 6 below), Morphisec will provide Customer, during Maintenance and Support Hours, the Maintenance and Support Services described in this Maintenance Policy with respect to supported Version of the Software. Maintenance and Support Services will be performed in a timely and professional manner by qualified maintenance technicians familiar with the supported Version of the Software and its operation. Morphisec will provide, upon Customer’s request, periodic reports on the status of Maintenance and Support Services requested by Customer.
3.3 If Customer experiences any Malfunction with respect to supported Version of the Software, Customer can contact Morphisec using any of the available contact channels outlined below and provide Morphisec with a written detailed description of the Malfunction. Morphisec keeps the right to amend such contact channels from time to time.
* Morphisec Support Portal
* Email: email@example.com
* Phone: US: (617) 2092552
* Phone Outside the US: Optional
* Chat – optional when available through the Support Portal
3.4 During the Maintenance and Support Hours, Morphisec or its Authorized Partner(s) duly qualified personnel will use commercially reasonable efforts to provide an initial response to Customer’s initial approach with offsite telephone or e-mail consultation, assistance, and advice relating to such Malfunction, as further described in Sections 3.3 – 3.5 below.
3.5 When a suspected Malfunction is reported, Morphisec or its Authorized Partner(s) will analyze the information provided by Customer according to the severity classification of the Malfunction level as set forth in Section 3.6 below. Morphisec or its Authorized Partner(s) will use commercially reasonable efforts to repair any Malfunction in the supported Version of Software to make such Software performing in material conformity with its then current documentation, in each case only when such Malfunction attributable to Morphisec, subject to the Exclusions set forth below and any other terms of this Maintenance and Support Policy, and in accordance with Section 3.6 below.
For the avoidance of doubt, Morphisec shall have no obligation to provide Maintenance and Support Services with respect to any Software Malfunctions if such Malfunction is caused by or related to
(i) products, components, features, applications, systems, or platforms other than the Software; and/or
(ii) any event that the Software is subjected to
a. misuse, neglect, accident, or improper installation, maintenance or operation,
b. combination with products other than those of Morphisec, unless Morphisec is the root cause for such Malfunction,
c. use in an application or environment or on a platform or with devices for which the Software was not designed or contemplated or otherwise not in compliance with its documentation and/or use according the EULA, or
d. if repairs or modifications are made by persons other than Morphisec’ own authorized service personnel, or Authorized Partner(s) unless such repairs by others are made with the prior written consent of Morphisec;
(iii) and/or any events beyond Morphisec control (as described in Section 8.1 below)
(each, an “Exclusion“).
To avoid any doubt, and without derogating from the generality of the foregoing, Maintenance and Support Services do not cover Malfunctions caused by the following: unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning or humidity control; neglect; misuse; operation of the Software with other media not in accordance with the Software documentation; or Malfunctions causes other than in Customer’s ordinary use in accordance with the Software documentation.
3.6 Service Levels and Definitions. Morphisec’ Customer support personnel will contact Customer’s designated support contact(s), within the Response Time designated below to explore the nature of the Malfunction experienced by Customer, determine whether the Malfunction is related to the supported Version of the Software and reasonably assign a priority level to the Malfunction in accordance with the table below, all at Morphisec sole discretion.
RESPONSE TIME (WITHIN)
|1– Critical||Customer reports a Malfunction that:
(i) renders the Software totally inoperative; or
(ii) causes any material feature to be unavailable or substantially impaired; or
(iii) compromises overall system integrity or data integrity when the Software is installed and operational in a production environment (e.g., causes a system crash or hang, or causes loss or corruption of data); or
(iv) causes a complete failure of the Software.
|2 – High||Customer reports a malfunction that:
(i) renders a required program or feature of the Software partially inoperative or intermittently operative; or
(ii) degrades performance in a production environment.
|3-Medium||Customer reports a partial, non-critical loss of functionality that:
(i) renders an optional program of feature inoperative or intermittently operative; or
(ii) causes only a minor impact on Customer’s use of Software.
|4 -Normal||Customer reports a malfunction that:
(i) has only a minor effect on Software functionality; or
(ii) cosmetic flaws; or
(iii) inquiries and questions about configuration and management of the Software.
Except where Customer has purchased special Maintenance and Support Services in a separate contract or Order Schedule, then response times are effective during Maintenance and Support Hours only, as set forth in subsection 1.2 above. A response time is a guarantee of communication timeframes only; Morphisec does not guarantee a Malfunction fix, workaround, or other final disposition within these timeframes.
- CUSTOMER RESPONSIBILITIES
4.1 Before contacting Morphisec with a suspected Malfunction, Customer undertakes to:
(i) analyze the suspected Malfunction to determine if it is the result of Customer’s misuse or misunderstanding of supported Version of the Software, the performance of a third party or some other Exclusion or cause beyond Morphisec’ reasonable control,
(ii) ascertain, to the extent possible, that the Malfunction cannot be corrected and
(iii) collect and provide to Morphisec all relevant information relating to the Malfunction.
4.2 Additional Customer responsibilities are:
(a) Customer agrees to receive from Morphisec communications via e-mail, telephone, and other formats (such as communications concerning support coverage, Malfunctions or other technical issues and the availability of new releases of the Software and training options).
(b) Customer’s technical contact shall provide all cooperation, assistance, documents and information reasonably requested by Morphisec to perform the Maintenance and Support Services.
(c) Customer is solely responsible for the use of the Software by its personnel and shall properly train its personnel in the use and application of the Software.
(d) Customer shall promptly report to Morphisec all problems with the supported Version of the Software, and shall implement any corrective procedures provided by Morphisec promptly after receipt.
(e) Customer is solely responsible for protecting and backing up the data and information stored on the computers on which the Software is installed and/or used and should confirm that such data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable, before contacting Morphisec for Maintenance and Support Services. Morphisec is not responsible for lost data or information in the event of Malfunctions or other malfunction of the Software or computers on which the Software is used.
(f) Customer will have dedicated resources available to work 24X7 on Malfunctions classified as “Critical” (Severity 1) (in accordance with the above definitions).
(g) Customer will provide Morphisec with proper tools, materials and entry authorization, as shall be deemed necessary by Morphisec and sufficient for it to provide such Maintenance and Support Services.
4.3 Without derogating from the foregoing, if Morphisec determines that a reported Malfunction is related to an Exclusion, then upon written notice to Customer, Morphisec may charge a fee for services at Morphisec’ at the then current services rates, plus reasonable out-of-pocket expenses.
- MAINTENANCE AND SUPPORT TERM; TERMINATION.
For subscription licenses the Maintenance and Support Term will continue during the subscription license period as defined in the Order Schedule.
In case that Customer purchases a perpetual license, as set forth in the applicable Order Schedule, than subject to payment by Customer of the applicable Maintenance and Support Fees, and subject to the terms of this Maintenance Policy and the EULA, Morphisec shall provide the Maintenance and Support Services described herein, for the initial maintenance and support term (“Initial Maintenance and Support Term”).
Subject to payment by Customer of the applicable Maintenance and Support Fees, the Initial Maintenance Term will automatically be extended for additional terms of one (1) year (each, a “Maintenance and Support Renewal Term”, and together with the Initial Maintenance Term, the “Maintenance and Support Term”) unless either party provides a written notice to the other party that it does not want to renew Maintenance and Support Services. Such notice may be given by either party to the other party no less than thirty (30) days prior to the expiration of the Initial Maintenance and Support Term or any Maintenance and Support Renewal Term, as applicable. Morphisec may change the Maintenance and Support Services offered and fees for such Maintenance and Support Services at any time, effective as of the commencement of the applicable Maintenance and Support Renewal Term. Upon any termination or expiration of this Maintenance Policy, all outstanding Maintenance and Support Fees will immediately become due and payable to Morphisec.
- MAINTENANCE AND SUPPORT FEES
In compensation for the Maintenance and Support Services provided under this Maintenance Policy, during the Maintenance and Support Term or the subscription license term, the Customer shall pay Morphisec or its Authorized Partner maintenance and support fees in accordance with the applicable Order Schedule (“Maintenance and Support Fees”). Unless specified otherwise in an Order Schedule, Maintenance and Support Fees shall be paid annually in advance by Customer to Morphisec or its Authorized Partner, at the beginning of each contract or service renewal date, for Maintenance and Support Services to be provided by Morphisec or its Authorized Partner in the consecutive twelve (12) months period in accordance with the applicable Order Schedule.
- LIMITED WARRANTY; DISCLAIMERS AND LIMITATION OF LIABILITY
7.1 Morphisec will use commercially reasonable efforts to repair any Malfunction in the supported Version of the Software to make such Software performing in material conformity with its then current documentation, in each case only when such Malfunction is attributable to Morphisec, subject to the Exclusions set forth in section 3.5 above and any other terms of this Maintenance Policy. EXCEPT AS EXPRESSLY STATED IN THIS MAINTENANCE AND SUPPORT POLICY, MORPHISEC MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE MAINTENANCE AND SUPPORT SERVICES PROVIDED HEREUNDER (INCLUDING WITH RESPECT TO THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE APPLICABLE SUPPORTED VERSION OF THE SOFTWARE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT, ACCURACY, INTEGRATION, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. THE WARRANTIES AND REMEDIES SET FORTH IN THIS MAINTENANCE POLICY ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED.
7.2. In the event of a breach of Morphisec’ warranty in Section 7.1 above with respect to the Maintenance and Support Services, Morphisec will, as the sole and exclusive remedy to Customer for the breach, re-perform the Maintenance and Support Services.
7.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AND NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL MORPHISEC BE LIABLE TO CUSTOMER WITH RESPECT TO THE MAINTENANCE AND SUPPORT SERVICES, IN AN AMOUNT WHICH EXCEED THE AMOUNT OF THE MAINTENANCE AND SUPPORT FEES PAID BY CUSTOMER IN THE ONE YEAR PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL MORPHISEC BE LIABLE FOR CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES OF ANY KIND IN CONNECTION WITH THE MAINTENANCE AND SUPPORT SERVICES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL OR SPECIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1 Morphisec shall not be liable for any failure to perform or delay in the performance of the Maintenance and Support Services hereunder, if such delays or failures are due to causes or circumstances beyond Morphisec’ reasonable control, including but not limited to acts of God, fire, flood, inclement weather, war, terrorism, embargo, accident, labor trouble, or shortage of transport, any governmental law, regulation, or any ruling of court or tribunal.
8.2 This Agreement shall be governed by and construed in accordance with the following:
(a) If Customer purchased the Maintenance and Support Services in or is located in the USA, South America or Canada, this Agreement shall be governed by, subject to and construed in accordance with the laws of the State of New York, excluding its conflict of laws provisions and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in New York, or
(b) if Customer purchased the Maintenance and Support Services in or is located in European Union, Norway, Switzerland, Japan, India, New Zealand or Australia this Agreement shall be governed by, subject to and construed in accordance with the laws of England and Wales and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in London, or
(c) otherwise, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in Tel-Aviv, Israel.
8.3 This Maintenance Policy may not be modified or altered except by written instrument duly executed by both parties.
8.4 If any provision of this Maintenance Policy is invalid under any applicable statute or rule of law, it is to that extent, deemed to be omitted.
8.5 The Customer may not assign, without the prior written consent of Morphisec, the Customer’s rights, duties or obligations under this Maintenance Policy to any person or entity, in whole or in part.