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 definitive agreement between the Company and the Customer) with Maintenance and Support Services (as defined herein) in accordance with this Maintenance and Support Policy (this “Maintenance and Support Policy”).
1. DEFINITIONS
1.1 Terms in this Maintenance and Support Policy which are capitalized shall have the meanings set forth herein or, if not defined herein, shall have the meanings set forth in the Company’s General Terms and Conditions available at https://doubleoctopus.com/terms-of-use/ or the Subscription Agreement entered into by the Customer and the Company or other definitive agreement entered into by the Customer related to the license of the Software, as applicable (the “Subscription Agreement” and together with the Company’s General Terms and Conditions, the “Agreement”). In the event of any conflict between this Maintenance and Support 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 | 8 a.m. – 8 p.m. USA EST |
| Europe, Middle East, Africa (EMEA) | 9 a.m. – 6 p.m. Europe CET |
| Asia Pacific | 1 p.m. – 10 p.m. SGT SST (Singapore Standard Time) |
| India | 11 a.m. – 8 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 set forth in Section 5 hereunder) 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) Phone Support (Hotline) 24/7 for S1 (Critical) calls only: US: +1-985-464-2515
(b) reasonable e-mail, website or telephone support
(c) reasonable efforts to remotely correct Malfunctions (as defined below) to keep the Software performing substantially in conformance with the applicable documentation; and
(d) provision of releases, modifications and bug fixes made to the Software which are provided from time to time to all or most of Company’s customers 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 compliance by Customer with the Customer Responsibilities as described in Section 4.
1.4 “Version” is the generally available Major Release, Minor Release and/or Maintenance Release of a Software product designated by its number as outlined 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 Maintenance Release. As a result, Company 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:
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 -> Octopus Authentication Server 4.0.0.)
1.6 “Minor Release” means a generally available release of the Software that:
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 -> Octopus Authentication Server 4.2.0.).
1.7 “Maintenance Release” means a generally available release of the Software that provides fixes or a work around. A Maintenance Release is designated by means of a change in most right digit (e.g., Octopus Authentication Server 4.2.0 -> Octopus Authentication Server 4.2.1), or Maintenance Release 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 (received by the Company in accordance with the provisions of this Maintenance and Support Policy), 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.
1.12 “Downtime” means, with respect to the Mobile Server, more than a ten percent (10%) user error rate across all of a Customer’s users. Downtime is measured based on server-side error rate.
1.13 “Scheduled Downtime”, means, performance of system maintenance, backup and upgrade functions for the Services. The duration of Scheduled Downtime is measured in minutes, as the amount of elapsed time from when the Services are not available to perform operations, to when the Services become available to perform operations. Scheduled Down time is planned out of customer’s working hours (e.g. for North America the scheduled downtime will be between 1AM to 5AM EST).
1.14 “Unscheduled Downtime”, means, any time, except for Scheduled Downtime, when the Services are not available. Notwithstanding the foregoing, Unscheduled Downtime does not include problems or disruptions resulting from (i) Customer’s actions and/or inactions, or the actions and inactions of Customer’s employees, consultants, service providers, and users, (ii) Customer’s equipment and/or third-party equipment , such as (but not limited to) third-party hosting or cloud services, and (iii) the unavailability of or problems in the Internet or cellular network.
1.15 “Yearly Uptime Percentage” means, with respect to the with respect to the Mobile Server , the total number of minutes in a calendar year minus the number of minutes of Downtime suffered in a calendar year, divided by the total number of minutes in a calendar year.
2. 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 the version used, and (iv) at Company’s discretion, fixing issues in previous versions may require upgrade or a work around to S1/S2 only.
3. MAINTENANCE AND SUPPORT SERVICE RESPONSIBILITIES:
3.1 This Maintenance and Support Policy 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)”). Company may use Authorized Partners in the performance of the Agreement.
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 professional manner by maintenance technicians in accordance with the provisions of this Maintenance and Support Policy. 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 Section 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 misuse, neglect, accident, or improper installation, maintenance or operation including without limitation the following: (A) combination with products other than those of Company, unless the Software is the root cause for such Malfunction; and/or (B) 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; and/or (C) 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 and in strict compliance with Company’s instructions; and/or
(iii) any events beyond Company’s control (as described in Section 8.1 below).
(iv) 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.
(each of (i)-(iv), an “Exclusion”).
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 |
| S-1 Critical | Customer experiencing and reports a major business impact that:
·A complete outage. The Software is totally inoperative (“System down”), and all users cannot access their SDO protected applications, or · Several Services do not function as intended, and all users connected to these Services cannot access their SDO protected applications, or · One major service does not function as intended, and all users connected to such service cannot access their SDO protected application. A workaround is not available to continue Customer’s normal business operations. |
Immediate response through Hotline (+1-985-464-2515) and up to two (2) hours through ticket | Every 4 hours | Within 4 hours. Either a workaround or a fix (hot fix or maintenance Release) |
| S-2 High | Customer experiencing and reports a business impact that:
· a feature does not 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
|
Immediate response through Hotline (+1-985-464-2515) and up to two (3) hours through ticket | Every twenty-four (24) business hours until Estimated Time to Resolution is provided |
Within 24-48 hours. Either a workaround or a fix (hot fix or Maintenance Release) |
| S-3 Medium | Customer experiencing and reports a business impact that an issue that is neither S-1 nor S-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 only. No SLA can be provided |
| S-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. | Seventy two business (72) 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 timeframes only; Company does not guarantee a Malfunction fix, workaround, or other final disposition within these timeframes.
4. Mobile Server Availability
The mobile server’s main function is to process push notification to the Octopus authentication mobile application, both for Android and iPhone.
The Octopus’ mobile server (the “Mobile Server”) will be operational and available to Customer at least 99.9% of the time in any calendar year (the “Secret Double Octopus SLA”).
Any lack of Availability of the mobile service provided by Company (the “Mobile Service”) that arises from: (i) failure by Customer or any other Customer’s user’s Internet connectivity, and/or (ii) Internet or other network traffic problems other than problems related to networks provided (or required to be provided) or controlled by the supplier; and/or (iii) Scheduled Downtime, shall not be taken into account for the purpose of calculating Downtime:
The Supplier shall notify the Customers at least seventy-two hours (72) in advance of all Scheduled Downtime. All such scheduled outages shall: (i) last no longer than one (1) hour each; (ii) be scheduled during the Maintenance Window; (iii) the Supplier shall use all reasonable efforts to ensure that Scheduled Downtime does not take place during regular business hours of the relevant Customer Site.
5. SaaS Availability
5.1 SaaS Service Commitment. The Company will use its commercially reasonable efforts to ensure that the Uptime (as defined below) equals or exceeds 99.9%. SDO’s daily system logs will be used to track Uptime. “Uptime” in relation to the Services, means, the total number of minutes in a calendar year, minus the total number of minutes in that calendar year that comprises Unscheduled Downtime (as defined below), divided by the total number of minutes in a calendar year.
5.2 Scheduled Downtime. A minimum of five (5) days advance notice will be provided for all Scheduled Downtime to perform system maintenance functions for the Services. The Company will notify you (via email or otherwise) of any Scheduled Downtime that will exceed one (1) hour.
5.3 Unscheduled Downtime. Unscheduled Downtime is measured in minutes.
6. CUSTOMER RESPONSIBILITIES
6.1 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; and
(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.
6.2 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.
6.3 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’ current services rates as may be determined by the Company from time to time at its sole discretion, plus reasonable out-of-pocket expenses.
7. MAINTENANCE AND SUPPORT TERM; TERMINATION.
For subscription licenses, the Maintenance and Support Term will continue during the subscription license period as agreed between the Company and the Customer.
The Maintenance and support Term will continue until the end of a six (6) month period following the product’s “end of life” (as defined below), and thereafter, the Company will not be obliged to provide Maintenance and Support Services.
The “end of life” for each product is published on the support center and can be found in the following link.
Company may change the Maintenance and Support Services offered and fees for such Maintenance and Support Services at any time, effective as of the date specified in Company’s notice of at least 30 days in connection therewith. Upon any termination or expiration of this Maintenance and Support Policy, all outstanding Maintenance and Support Fees will immediately become due and payable to Company.
8. MAINTENANCE AND SUPPORT FEES
Subject to payment of the consideration for the license granted under the Agreement, there shall be no additional compensation for the provision of reasonable Maintenance and Support Services provided under this Maintenance and Support Policy, solely with respect to the matters specified in the table embedded in Section 3, during the Maintenance and Support Term. Any requests and/or complaints other than with respect to the matters specified in the table embedded in Section 3, are subject to additional fees as shall be notified by the Company, and shall be payable as shall be agreed between Company and Customer.
9. LIMITED WARRANTY; DISCLAIMERS AND LIMITATION OF LIABILITY
9.1 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 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 WITHOUT LIMITATION 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.
9.2. 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.
9.3. 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 ACTUALLY 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.
10. GENERAL
10.1 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 and/or epidemic (including without limitation the Corona outbreak), embargo, accident, labor trouble, or shortage of transport, any governmental law, regulation, or any ruling of court or tribunal.
10.2 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 North 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) 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.
10.3 This Maintenance and Support Policy may not be modified or altered except by written instrument duly executed by both parties.
10.4 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.
10.5 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.
Last update: March 20, 2024