Mocana Maintenance and Support

This Mocana Maintenance and Support Agreement (“Support Agreement”) is provided to you (“Customer”) for maintenance and support services purchased by you directly with Mocana Corporation (“Mocana”) pursuant to an order form that references this Support Agreement or purchased through an authorized reseller of Mocana. Capitalized terms not defined in this Support Agreement shall have the meaning given to them in the Customer Agreement (defined below).

 

1.             DEFINITIONS

“Customer Agreement”  means the legal agreement between Mocana (or its authorized reseller) and Customer which dictates the terms of using Mocana’s Products. The Customer Agreement can be either Mocana’s End User License Agreement or the OEM Agreement.

“Error” means an incident that investigation reveals are caused by the Product’s failure to perform materially in accordance with the specifications set forth in the Documentation for such Product. An incident will not be classified as an Error if (a) the relevant Product is not used for its intended purpose; (b) the incident is caused by Licensee’s or a third party’s software or equipment (except to the extent Mocana has incorporated or packaged such third party’s software or equipment in or with the Product); or (c) the version of the Product on which the Error has purportedly occurred is not the most current version of such Product made available to Licensee under this Support Agreement.

“Products” means the software products (e.g., TrustPoint Core, TrustPoint Client or TrustCenter) that are licensed pursuant to the Customer Agreement.

“Severity Levels” means a perceived Error in the Product is reportedly having the following impact on Customer's business:

  1. Priority 1 “P1” Critical Error means the reported Error is having a material impact on critical business operations at the enterprise level that cannot be worked around and which needs to be corrected as soon as reasonably possible. Customer resources should be willing to work up to a 24x7 hour basis, or the maximum amount of time available to resolve the issues. 
  2. Priority 2 “P2” Error means the reported Error is having a material impact on important business operations that can be worked around or deferred for only a limited period of time.
  3. Priority 3 “P3” Error means the reported Error is degrading business operations in a way that delays or interferes with some non-critical business operations and can be worked around for a reasonable time.

“Update” means a change to the current version of a Product or a component thereof that may include, without limitation, bug fixes, enhancements to the capability of certain features or changes in the number, type, and/or specification of the supported platform(s).

 

2.             SERVICE DISRUPTION

2.1           System Maintenance Services.  Subject to Mocana’s receipt of the annual maintenance fee specified on an order form (the “Annual Maintenance Fee”) and other amounts due hereunder, either directly from Customer or an authorized Mocana Partner, Mocana will provide the following Maintenance Services to Customer during the Term. Except as specifically noted, Maintenance Services will be provided remotely from Mocana’s locations to the Customer, in the English language. Where applicable, Customer may utilize an authorized Mocana partner as an intermediary to provide local language support as needed.

2.2           Instructional Maintenance Services. 

  1. Training. Customer will review documentation to familiarize themselves with the features of the Product. Any training services in the Product will be performed as a separately billable service if so specified on an order form.
  2. Web Site Service. During the Term, Customer's Account Representative may access Mocana's web site. The web site may contain reference materials and provide electronic fulfillment of Updates. Customer shall observe all security requirements and shall not allow others to share its account.
2.3           System Upgrade Services.  Customer will install Updates according to Mocana release notes within a reasonable time, but no later than the support expiration date for the prior Update.  If Customer requires Mocana to install the Updates, then Customer shall request such add-on services from Mocana and pay Mocana’s standard rates for such installation services.  An Update will generally be supported for the two (2) previous versions.


2.4           Call-In Maintenance Service Call-In Maintenance Service is available during normal hours of operation (currently 9:00 a.m. to 5:00 p.m., pacific time) (“Normal Hours”). Mocana will provide extended hours to respond to Priority 1 service requests.


2.5           Submitting Service Requests Customer's designated contact person, or persons, will submit service requests according to Mocana instructions. The service request should assign a Priority level and adequately describe and document the reported Error so it can be reproduced. Mocana may recharacterize the Priority level determine if the request requires professional services (e.g., engineering services) and charge Customer an additional fee if professional services are required.

3.             SUPPORT OFFERINGS

3.1           Response Methods.  Mocana provides support via web, email and phone. Initial Response goals are relative to the impact of the reported problem on the customer environment. Support Levels are described in Table 1. Note: All of Mocana’s support offerings are subject to change without notice, and not all support offerings are available for all Mocana products.

3.2           Response to Service Request.  Initial Response time begins when Mocana logs-in a service request in proper form from the Customer's authorized contact. Service requests received after Normal Hours are logged at the beginning of the next business day (except Priority 1 cases may be logged sooner if Mocana personnel are available). Response time ends with Mocana's notice that it has commenced diagnosis and Error correction efforts.

3.3           Request for Problem Resolution.  All requests by Customer’s staff regarding Error resolution will be logged after which Mocana will perform an initial diagnosis and determine as far as reasonably practical the source of any Error which may have led to the support request. All response and resolution times shall commence at the beginning of the next business day for requests for problem resolution that are logged during non-business hours.

3.4           Support Levels.  Mocana offers support programs Customers may purchase related to product coverage, response times, and methods as defined in Table 1:

maintenance-table

 

4.             BUG FIXING

4.1           Procedure.  Mocana will investigate service requests concerning suspected problems with Product provided that (a) Customer sends Mocana a written report, which includes evidence of the suspected Error, and (b) the incident can be reproduced or reasonably confirmed by Mocana. Mocana will use commercially reasonable efforts to promptly correct the Error or provide a workaround to permit Customer to use the Product substantially in conformance with the applicable Documentation. Should an Error not be resolved quickly or for bugs that require further investigation, the procedures outlined under “Escalation Procedures” and will engage the appropriate resources.

4.2           Response to Problem Resolution.  Bug fixes will be delivered in a mutually agreeable fashion and based on the priority of the issue. It may be delivered in a patch, or in a future Update.

5.             5. ESCALATION PROCEDURES

With regard to Errors submitted to escalation procedures, an action plan will be developed by Mocana support team and communicated to Customer. When an escalated Error has been resolved, the request for assistance will be considered closed upon the mutual agreement of the parties, such agreement not to be unreasonably withheld, delayed or conditioned. An Error will not be considered resolved until one of the following activities has been completed:

  1. A resolution to the problem is obtained to Customer’s reasonable satisfaction;
  2. A computer software code change in the form of a patch or an Update that corrects the problem without causing additional problems has been delivered to Customer, successfully installed and is working;
  3. A short-term workaround is delivered to Customer, though such delivery shall not absolve Mocana from any obligation to provide a long-term solution if required; or
  4. An engineering commitment is made to correct the problem in an Update of the Product.

6.             EXCLUDED SERVICES

6.1           Mocana shall not be obligated to fix any Error or problem:

  1. where the Product is not used for its intended purpose; or
  2. where the Product has been altered, damaged, modified, or incorporated into other software in a manner not approved by Mocana; or
  3. where the Product is a release that is no longer supported by Mocana; or
  4. which is caused by Customer’s or a third-party’s software or equipment or by Customer or Customer’s negligence, abuse, misapplication or use of the Product other than as specified in the Documentation; or
  5. where fixing the problem would require changes to Customer’s hardware or an Update.

6.2           6.2 If Mocana determines that it has no obligation to fix the Error for one of the reasons stated above, the parties may enter into a separate agreement authorizing Mocana to provide additional support services at Mocana’s then-current professional services rates plus expenses.

7.             EXCLUDED SERVICES

7.1           Requires a custom support contract based on custom development requirements.

7.2           Customer is expected to provide fully trained and qualified personnel for integrating Mocana’s source code and libraries

7.3           If fault isolation determines Mocana is not the source of the problem, meaning the Customer’s code or process is responsible for the reported event or outage, Customer may engage Mocana for assistance to resolve the problem for an additional cost at Mocana’s then-current professional services rates plus expenses.

8.             CUSTOMER RESPONSIBILITIES

Customer shall ensure that: (i) the Product, Updates and any associated components are installed and operated properly; (ii) no other components having an adverse impact on the Product has been introduced; (iii) any specifications supplied to Mocana are accurate and complete and (iv) no changes to the Product were made other than by Mocana or with its approval. The Customer will cooperate with requests to document errors and configuration data, allow remote dial-in access on a secure basis, reconfigure its Product, install Updates or components or adjust its business processes.

9.             PRICES AND PAYMENTS

9.1           Annual Maintenance Fee.

  1. Subscriber will pay the Annual Maintenance Fee each year during the Term, starting with the Service Commencement Date. The Service Commencement Date is as stated in the Order Form. Mocana may adjust Annual Maintenance Fees upon each renewal of the Term hereof by not more than six (6) percent of the Annual Maintenance Fee for the preceding year (except this limitation shall not apply to third-party pass-through costs, if any). Maintenance services are offered on a continuous subscription basis. If service lapses and is later reinstated, Customer will pay the Annual Maintenance Fees otherwise due for the period of lapse. Mocana may pro-rate Annual Maintenance Fees to coordinate with a fiscal or calendar year. Annual Maintenance Fees are non-refundable and non-cancelable. Customer may issue purchase orders for administrative convenience, but they shall not be a precondition to renewal of service or affect Customer’s obligation to pay Annual Maintenance Fees. Unless otherwise specified, all Annual Maintenance Fees are stated and payable in USD$.
  2. Extra Surcharges. Mocana may impose extra surcharges for services and deliverables not covered by the Annual Maintenance Fee. Unless agreed in writing, the pre-authorized, actual, reasonable, documented cost of long-distance travel by Mocana in performing services under this Support Agreement shall be reimbursed as an extra surcharge.
  3. Professional Services Fees. Mocana’s fees for Professional Services are specified on the Order Form. Any total amount specified for such work will be considered a reasonably accurate estimate only, unless clearly identified as a fixed price or not-to-exceed limit and associated with a clear written scope of work.
  4. Invoicing & Payment. The Annual Maintenance Fee will be invoiced as specified in the Order Form. Extra Surcharges and Consulting Maintenance Service fees shall be invoiced monthly or as otherwise agreed in writing. Invoices shall be paid within thirty (30) days from date of receipt, without setoff or deduction.
  5. Certain Taxes. Customer shall pay, indemnify and hold Mocana harmless from all sales, use, gross receipts, GST, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided hereunder, other than taxes based on the net income or profits of Mocana ("Tax Obligations"). If Mocana relies on any tax exemption certificate supplied by Subscriber which is disallowed by a taxing authority, Customer will promptly pay and indemnify Mocana against such Tax Obligations.

10.             TERM & TERMINATION

  1. Term. This Support Agreement is for the term specified in the Order Form and will renew automatically according to terms in the Order Form, unless terminated earlier as set forth below (the “Term”). Nothing shall be interpreted as requiring either party to renew this Support Agreement beyond its original term.
  2. Termination for Cause. Either party may terminate this Support Agreement at any time prior to the expiration of its stated term in the event that the other party breaches any provision of this Support Agreement and such breach continues unremedied for a period of thirty (30) days following receipt of written notice thereof. In addition, Mocana may terminate this Support Agreement (i) in the event Customer defaults in any payment due to Mocana and such default continues unremedied for a period of ten (10) days following receipt of written notice of such default; or (ii) immediately upon written notice, in the event Customer is merged, consolidated, sells all or substantially all of its assets, or implements or suffers any substantial change in management or control.
  3. Automatic Termination. This Support Agreement terminates automatically, with no further act or action of either party, if a receiver is appointed for either party or its property, either party makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against either party under any bankruptcy, insolvency or debtor's relief law, or either party is liquidated or dissolved.
  4. Orders After Termination Notice. In the event that any notice of termination of this Support Agreement is given by either party, Mocana will be entitled to reject all or part of any orders received from Customer after notice but prior to the effective date of termination.
  5. No Damages for Termination or Expiration. NEITHER MOCANA NOR CUSTOMER SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
  6. Survival. Customer’s obligations to pay Mocana all amounts due hereunder (limited to amounts outstanding as of the termination or expiration date), shall survive termination or expiration of this Support Agreement for any reason.
  7. Right to Use Upon any termination of this Support Agreement, each Customer to whom Mocana has, directly or indirectly, licensed the Product, shall continue to have a right to use such Product so long as the Customer is not in breach of any of the provision of the EULA.

11.             PROPRIETARY RIGHTS

The Product and work product resulting from Maintenance Service shall remain the property of Mocana. Usage rights for such deliverables shall be the same as for the Product, or as otherwise specified in a license agreement governing that subject matter. Mocana reserves all rights not expressly granted.

12.             ADDITIONAL GOVERNING TERMS

This Support Agreement incorporates the full terms and conditions of the EULA. By executing this Support Agreement, Customer acknowledges and accepts those terms in full.

13.             ENTIRE AGREEMENT

This Support Agreement and its Exhibits and the EULA constitute the complete and exclusive agreement between the parties pertaining to the subject matter hereof and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. Customer acknowledges that it is not entering into this Support Agreement on the basis of any representations not expressly contained herein. Any modifications of this Support Agreement must be in writing and signed by both parties hereto. Any such modification shall be binding upon Mocana only if and when signed by one of its duly authorized officers.