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).
“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:
2. SERVICE DESCRIPTION
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.
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:
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. 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:
6. EXCLUDED SERVICES
6.1 Mocana shall not be obligated to fix any Error or problem:
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. TRUSTPOINT CORE SUPPORT
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.
10. TERM & TERMINATION
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.