Secret Double Octopus Maintenance and Support Policy in Effect as of July 2020

Secret Double Octopus Ltd. and/or Secret Double Octopus Inc. and/or any of its affiliates (collectively “Company”) shall provide Customer (as defined in the Agreement)  (“Customer”) with Maintenance and Support Services (as defined herein) in accordance with this Maintenance and Support Policy (“Maintenance and Support Policy”).

  1. DEFINITIONS

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 General Terms and Conditions/End-User Software License Agreement or the Subscription Agreement entered into by the parties, as applicable (the “EULA” and the “Subscription Agreement” respectively, each and together the “Agreement”).  In the event of any conflict between this Maintenance Policy and the Agreement, this Maintenance and Support Policy shall prevail.

1.2 “Maintenance and Support Hours” are Monday through Friday, during business hours as defined in the table below.

North America

9 a.m. – 8 p.m. USA EST

Europe, Middle East, Africa (EMEA)

9 a.m. – 5 p.m. Europe CET

Asia Pacific

9 a.m. – 5 p.m. SGT SST (Singapore Standard Time)

India

9 a.m. – 5 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 Approved Order Form. 

The Maintenance and Support Services consist of: 

(a) reasonable e-mail, website or telephone support

(b) reasonable efforts to remotely correct Malfunctions (as defined below) to keep the Software performing substantially in conformance with the applicable documentation, and 

(c) provision of releases, modifications and bug fixes made to the Software which are provided from time to time to COMPANY’s general client base at no additional charge beyond the Maintenance and Support Fees (collectively, the “Upgrades”). For the avoidance of doubt (i) COMPANY shall have no obligation to develop any Upgrades, and (ii) software products that are or will be marketed by COMPANY 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 COMPANY 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, COMPANY, 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:

  1. Functional enhancements and extensions.
  2. 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., Octopus Authentication Server 3.1.2 à Octopus Authentication Server 4.0.0.)

1.6 “Minor Release” means a generally available release of the Software that:

  1. introduces a limited number of new features, functionality and minor enhancements.
  2. 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 second digit after the decimal point (Octopus Authentication Server 4.0.0 à Octopus Authentication Server 4.2.0.).

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., Octopus Authentication Server 4.2.0 à Octopus Authentication Server 4.2.1), or Patch number in the Management Console.

1.8 “Support Portal” means an online portal as described under Section 3.3 below, 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 COMPANY’ Customer Support personnel report back to the Customer’s designated support contact to acknowledge receipt of such report and define an Initial Action Plan for resolution.

1.11 An “Initial Action Plan” is a verbal or written description of the tasks to be taken by both COMPANY 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.

  1. SCOPE:

COMPANY provides Maintenance and Support Services for (i) its most current Version of a Software product (including all Upgrades for such Version) (ii) previous Versions for so long that they are not declared by the COMPANY, at its sole discretion, as “End of Life”. Once a Version is declared End of Life, Customers shall have 12 months to upgrade, and (iv) at COMPANY’s discretion, fixing issues in previous versions may require upgrade or a work around to S1/S2 only.


  1. MAINTENANCE AND SUPPORT SERVICE RESPONSIBILITIES

3.1 This Agreement applies whether Customer purchased the Maintenance and Support Services directly from COMPANY or through COMPANY’s authorized resellers, distributors or any other sales channels (“Authorized Partner(s)”).

3.2 Provided Customer is in compliance with the Agreement and this Maintenance and Support Policy and has paid all applicable Maintenance and Support Fees (as further described under Section 6 below), COMPANY will provide Customer, during Maintenance and Support Hours, the Maintenance and Support Services described in this Maintenance and Support 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. COMPANY will provide, upon Customer’s request, but in any event no more than once per year, 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 COMPANY using any of the available contact channels outlined below and provide COMPANY with a written detailed description of the Malfunction. COMPANY keeps the right to amend such contact channels from time to time.

 3.4 During the Maintenance and Support Hours, COMPANY 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, COMPANY 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.  COMPANY 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 COMPANY, 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, COMPANY 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 COMPANY, unless COMPANY’s Software 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  Agreement, or
 
 
d. if repairs or modifications are made by persons other than COMPANY’s own authorized service personnel, or Authorized Partner(s) unless such repairs by others are made with the prior written consent of COMPANY; 

(iii) and/or any events beyond COMPANY’s 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. COMPANY’ 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 COMPANY sole discretion.

 

 

Severities and SLA

Severity 

Description  

Initial Human Response 

Status Updates 

Workaround provided

P-1 Critical

Customer experiencing and reports a major business impact that:

  • A complete outage. The Software is totally inoperative (“System down”), and all users can’t access their SDO protected applications, or
  • Several Services don’t function as intended, and all users connected to these Services can’t access their SDO protected applications, or
  • One major service doesn’t function as intended, and all users connected to this Service can’t access their SDO protected application.

A workaround is not available to continue customer’s normal business operations.

 

Note: New setups are P-3 severity.

One (1) business Hour 

Every 6 hours

Within 4 hours,

Either a workaround or a fix (hot fix or Patch)

P-2 High

Customer experiencing and reports a business impact that:

  • a feature doesn’t work properly, is annoying, but multiple users are not prevented from progressing with important tasks, or
  • a required program or feature of the Software partially inoperative or intermittently operative

 

A work-around exists

Eight (8) business Hours  

Every twenty-four (24) business hours until Estimated Time to Resolution is provided 

Within 12 hours,

Either a workaround or a fix (hot fix or Patch)

P-3 Medium

Customer experiencing and reports a business impact that:

An issue that is neither P-1 nor P-2, but impairing use or progress in adoption.  Minimal-to-no business impact occurring as a result E.g. – Settings changes by SDO Admin, changes to Firewall or authentication protocols/services, adding new services.

Twenty-four business (24) hours 

Every 10 business days

Best effort

, No SLA can be provided

P-4 Low

Customer experiencing and reports a business impact that:

Has only a minor effect on Software functionality with no business impact. This may include topics such as: cosmetics flaws, requesting technical documentation, generalized questions, best practices, or inquiries involving new Service setups.

Thirty-six business (36) hours 

Best effort, No SLA can be provided

 

 








Except where Customer has purchased special Maintenance and Support Services in a separate contract or Approved Order Form, 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 time frames only; COMPANY does not guarantee a Malfunction fix, workaround, or other final disposition within these time frames.

  1. CUSTOMER RESPONSIBILITIES

4.1 Before contacting COMPANY 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 COMPANY’ reasonable control,

(ii) ascertain, to the extent possible, that the Malfunction cannot be corrected by the Customer and

(iii) collect and provide to COMPANY all relevant information relating to the Malfunction.

4.2 Additional Customer responsibilities are:

(a) Customer agrees to receive from COMPANY 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 COMPANY to perform the Maintenance and Support Services.

(c) Customer is solely responsible for the use of the Software by its Users or personnel and shall properly train its personnel in the use and application of the Software.

(d) Customer shall promptly report to COMPANY all problems with the supported Version of the Software and shall implement any corrective procedures provided by COMPANY 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 COMPANY for Maintenance and Support Services. COMPANY 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 COMPANY with proper tools, materials and entry authorization, as shall be deemed necessary by COMPANY and sufficient for it to provide such Maintenance and Support Services.

4.3 Without derogating from the foregoing, if COMPANY determines that a reported Malfunction is related to an Exclusion, then upon written notice to Customer, COMPANY may charge a fee for services at COMPANY’ at the then current services rates, plus reasonable out-of-pocket expenses.

  1. MAINTENANCE AND SUPPORT TERM; TERMINATION.

For subscription licenses, the Maintenance and Support Term will continue during the subscription license period as defined in the Approved Order Form.

COMPANY 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 COMPANY.

  1. MAINTENANCE AND SUPPORT FEES

In compensation for the Maintenance and Support Services provided under this Maintenance and Support Policy, during the Maintenance and Support Term or the subscription license term, the Customer shall pay COMPANY or its Authorized Partner maintenance and support fees in accordance with the Agreement or the applicable Approved Order Form (“Maintenance and Support Fees”). Unless specified otherwise in the Agreement or an Approved Order Form, Maintenance and Support Fees shall be paid annually in advance by Customer to COMPANY or its Authorized Partner, at the beginning of each contract or service renewal date, for Maintenance and Support Services to be provided by COMPANY or its Authorized Partner in the consecutive twelve (12) months period in accordance with the applicable Approved Order Form. 

  1. LIMITED WARRANTY; DISCLAIMERS AND LIMITATION OF LIABILITY

7.1 COMPANY 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 COMPANY, subject to the Exclusions set forth in section 3.5 above and any other terms of this Maintenance  and Support Policy. EXCEPT AS EXPRESSLY STATED IN THIS MAINTENANCE AND SUPPORT POLICY, COMPANY 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 AND SUPPORT 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 COMPANY’s warranty in Section 7.1 above with respect to the Maintenance and Support Services, COMPANY 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 COMPANY BE LIABLE TO CUSTOMER WITH RESPECT TO THE MAINTENANCE AND SUPPORT SERVICES, IN AN AMOUNT WHICH EXCEEDS THE AMOUNT OF THE MAINTENANCE AND SUPPORT FEES PAID BY CUSTOMER IN THE ONE YEAR PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL COMPANY 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.

  1. GENERAL

8.1 COMPANY 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 COMPANY’s reasonable control, including but not limited to acts of God, fire, flood, inclement weather, war, terrorism, pandemic, 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, United Kingdom, 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 and Support Policy may not be modified or altered except by written instrument duly executed by both parties.

8.4 If any provision of this Maintenance and Support 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 COMPANY, the Customer’s rights, duties or obligations under this Maintenance and Support Policy to any person or entity, in whole or in part.