Maintenance and Support Policy

Morphisec’S MAINTENANCE AND SUPPORT POLICY IN EFFECT AS OF NOVEMBER 2022

This Maintenance and Support Policy (this “Policy”) governs the Maintenance and Support Services (as defined below) provided by the Morphisec group to its customers (“Customers”). The specific Morphisec entity providing Maintenance and Support Services to each Customer, and with which such Customer is engaging hereunder, is the Morphisec group entity with which such Customer has executed its License (such engaging entity shall be referred to as “Morphisec”). 

1. Definitions

For the purpose of this Policy, the following capitalized terms shall have the following definitions:

"Downtime” means (i) unavailability due to planned maintenance carried out by Morphisec (in all cases, where possible, Morphisec will take reasonable efforts to provide the Customer advance notice of such maintenance to the extent possible), (ii) unavailability due to unplanned maintenance urgently required which may be conducted whenever needed (as determined by Morphisec at its sole discretion), (iii) unavailability due to third party hosting services or other external systems or infrastructure, including without limitation internet, network, and telecommunication infrastructure, (iv) any Force Majeure event or other event which is out of Morphisec’s reasonable control, and (v) for Morphisec Cloud Platform, a weekly maintenance session that occurs each Sunday between 03:00-11:00 UTC time (EST: Sat 11:00pm – Sun 07:00am).

“License” means a subscription agreement or other written agreement between Morphisec and Customer governing the use of the applicable Morphisec Product, as well as any applicable Sales Order thereunder.

“Malfunction” means a defect that prevents the any Supported Version of a Morphisec Product from performing in material conformity with its written documentation. 

“Morphisec Product” means a distinct Morphisec Product, and may include without limitation, the Morphisec software when stored on servers/machines which are not owned or controlled by Morphisec (“On Prem Software”) or when licensed to Customer under a SAAS license where the server console is stored on servers/machines which are owned or controlled by Morphisec (“SAAS Solution”), whichever is actually licensed to Customer under a License. 

“Major Release” means a release made generally available to the Morphisec group client base of the applicable Morphisec Product, which is determined by the Morphisec group to include major functional enhancements and extensions; as shall be indicated in the release name by a change in the digit to the left of the first decimal point (e.g., 1.0 to 2.0).

“Minor Release” means a release made generally available to the Morphisec group client base of the applicable Morphisec Product, which is determined by the Morphisec group to only include a limited number of new features or functionalities or minor enhancements; as shall be indicated in the release name by a change in the digit to the right of the first decimal point (e.g., 1.0 to 1.1).

“Patch Release” means a release made generally available to the Morphisec group client base of the applicable Morphisec Product, which is determined by the Morphisec group to only include fixes or provides a work around for errors; as shall be indicated in the release name by a change in the digit to the right of the second decimal point (e.g., 1.1.0 to 1.1.1).

“Version” means either a Major Release, Minor Release or Patch Release. 

Other capitalized terms shall have the meanings provided elsewhere in this Policy, and if none are provided in this policy, the meaning provided to such terms in the applicable License document.

2. Availability of the SAAS Solution Service

Excluding Downtime, Morphisec shall use commercially reasonable efforts to ensure that the SAAS Solution will be operational and available at least 99.5% of the time in any calendar month.

3. Scope of Services

The services provided hereunder consist of (the “Maintenance and Support Services”): 

●    Malfunction support services consisting of (a) initial analysis of any Support Call reporting a Malfunction in order to assign a severity level to the Malfunction (if needed, Morphisec shall contact Customer in order to jointly discuss the assignment of a severity level, though Morphisec shall ultimately have discretion to reasonably assign the severity level); (b) assignment to the Support Call of a qualified maintenance and support technician familiar with the Supported Version of the Morphisec Product and its operation, and use of commercially reasonable efforts to contact the Customer within the Response Times specified below in order to devise an action plan covering the tasks to be taken by each of Morphisec and Customer in order to diagnose, triage, and address the Malfunction, along with an approximate timeframe for the performance of each task (the “Action Plan”); (c) use of commercially reasonable efforts to resolve any Malfunction of a supported Version. Morphisec will provide periodic reports to Customer on the status of any outstanding Support Call.

Standard Response Time Frames:

 *Response times are measured by time elapsed from the time of submission of a Support Call until the initial response by Morphisec to devise an Action Plan. It is clarified, notwithstanding anything herein to the contrary, that response times are a guarantee of communication timeframes only (Morphisec does not guarantee Malfunction resolution, workaround, or other final disposition within any particular timeframe); furthermore, time frames in an Action Plan are not a guarantee that the Malfunction will be solved within such time frame or any other, but rather only an initial estimation of the time frames for work (Morphisec shall reasonably update Customer about expected deviations from such time frame).

●    Product update services consisting of provision by Morphisec of new Versions of the Morphisec Product from time to time, as are made generally available to Morphisec’s applicable client base (at Morphisec’s discretion, and in all cases subject to Section 7 of this Policy). It is clarified that where the Morphisec Product licensed to Customer is On Prem Software, any Versions made available (if any) will be made available by Morphisec on its website (it is Customer’s responsibility to download such Versions). Where the Morphisec Product licensed to Customer is the SAAS Solution or any other offering a component of which is stored on servers/machines which are owned or controlled by Morphisec, Morphisec may freely update Versions on all components of such Morphisec Product absent consent and at its discretion. While Morphisec may elect to make Versions available or notify Customers of Version releases from time to time, it is not obligated to do so in any manners whatsoever (nor will any such practice create an obligation of it to continue to do so).

●    Other assistance and support services with respect to the Morphisec Product, as Morphisec may provide from time to time (at its discretion), such as assistance with installation or configuration. It is clarified that Morphisec has discretion to determine whether or not to include such services in this Maintenance and Support Services (and whether to cease or include additional other services hereunder), and what their scope shall be. Additionally, it is clarified that any services covered by any other written agreement between Morphisec and Customer, shall not be considered part of the Maintenance and Support Services.

All Maintenance and Support Services will be delivered in English, and shall be provided via reasonable telephone, e-mail or other remote means decided by Morphisec. Morphisec undertakes that all Maintenance and Support Services will be provided in a courteous and professional manner, by personnel adequately skilled to perform such services.
    
4. Standard Maintenance and Support Hours

Unless Customer has specifically purchased a 24/7 support plan, all Standard Maintenance and Support Services shall be performed solely during the following hours, dependent on the region from which the Support Call is made (as specified in the following chart), Monday through Friday (“Maintenance and Support Hours”):

5. Support Calls

Maintenance and Support Services shall be provided pursuant to Customer requests to receive support with respect to Supported Versions of the Morphisec Product (“Support Calls”). Support Calls must be submitted by Customer either via (i) the Morphisec Support Portal at: https://support.morphisec.com/portal/ (Customer may be required to register and create an account for such purpose), (ii) by e-mail to support@morphisec.com, (iii) by phone to +1-857-228-0285; or (iv) through any other communication channels designated by Morphisec from time to time for such purpose. 

Any Support Call with respect to a Malfunction must include a detailed description of the Malfunction experienced by Customer. Additionally, prior to submitting a Support Call, Customer is requested to perform a cursory analysis of the alleged Malfunction and to attempt to locate any Customer misuse or other factors outside of the scope of this Policy (such as those specified in Section 10) which may have caused the Malfunction. 

6. Term of the Maintenance and Support Services

Maintenance and Support Services are available solely through the term for maintenance and support specified in Customer’s License, and if the License does not specify such term, then for the duration of the paid subscription purchased by Customer under such License (the “Maintenance and Support Term”); provided however that if the License is terminated by Morphisec due to Customer’s breach, the Maintenance and Support Term shall also terminate. This Policy applies during the duration of the Maintenance and Support Term, provided that provisions intended to survive termination (such as Section 11 and 12) shall so survive.

7. Supported Versions; Version Control

Notwithstanding anything to the contrary herein, Maintenance and Support services are provided solely with respect to Supported Versions of the Morphisec Product. A “Supported Version” of the Morphisec Product means, at any given time (i) the latest Major Release of a Morphisec Product (as well as all of the Minor Releases and Patch Releases of such Major Release), and (ii) for a period of 12 months from the commercial release date of the latest Major Release, the immediately preceding Major Release (as well as all of the Minor Releases and Patch Releases of such Major Release).

It is clarified, notwithstanding anything to the contrary herein, that the Morphisec group shall have sole discretion to decide the schedule of development or release of Versions (if at all). Furthermore, the Morphisec group has sole discretion to decide whether a release which includes additional functionality is a separate product and not a Version of an existing Morphisec Product (without limitation, any product or service marketed by the Morphisec group as a separate product or service, or for which additional fees are generally charged, shall not be considered as a Version of an existing Morphisec Product). Where the Morphisec group makes such a determination, the release of such new product or services shall not affect the determination of whether any existing Version is a Supported Version, but it is clarified that such new product or service may not be available to Customer, and receipt of such new product or service may be subject to payment of additional fees, or subject to different license terms (as determined by the Morphisec group). 

8. Distinction between Morphisec Products

It is clarified, notwithstanding anything to the contrary herein, that the Morphisec group shall have sole discretion to decide which of its various products and services are considered separate ‘Morphisec Products’. For avoidance of doubt, and without limitation, it is clarified that (i) the Morphisec SAAS Solution (inclusive of any agent component installed on Customers’ machines) and the Morphisec On Prem Software are not considered the same Morphisec Product, and (ii) any product or services offered for various operating systems shall be considered a distinct Morphisec Products with respect to each specific operating system; If Morphisec release a Version of one of the foregoing to the applicable customers of such product or service, it shall not be obligated to release an equivalent Version of the other.

9. Customer Responsibilities and Consents

As a condition to receipt of Maintenance and Support Services, Customer must (i) have a valid License in effect with a Morphisec group entity (or through an authorized Morphisec reseller or distributor) which specifies Customer is entitled to Maintenance and Support Services, (ii) not be in breach of its obligations under such License, inclusive without limitation of any payment obligations (whether general payment obligations under the License, or specific payment obligations for Maintenance and Support Services, if any are specified).

Where Maintenance and Support Services are provided with respect to a Malfunction, Customer shall (a) allocate a dedicated resource available to work with Morphisec to resolve the Malfunction, at a scope of availability and according to a schedule as may be reasonably necessary in light of the severity of the malfunction, and (b) cooperate with Morphisec in the resolution process and provide Morphisec all information reasonably requested by it to perform the Maintenance and Support Services. 

In connection with the receipt of the Maintenance and Support Services, Customer consents to the receipt from the Morphisec group of e-mails, telephones and other communications regarding the Maintenance and Support Services. Additionally, Customer agrees to provide Morphisec with access to Customer servers, systems, networks and machines on which the Morphisec Product resides, as shall be deemed necessary by Morphisec to provide such Maintenance and Support Services. Customer further acknowledges and approves that Morphisec may access components of the SAAS Solution (or any other offering a component of which is stored on servers/machines which are owned or controlled by Morphisec) which reside on Morphisec controlled servers, systems, networks and machines (if applicable) and on which Log Data and Customer Data may also reside, in order to provide the Maintenance and Support Services and all without notifying Customer. While Customer may opt out of the consents provided in this Section (other than with respect to Version updates for such offerings) by notifying Morphisec in writing, it acknowledges that such consents are a prerequisite to receipt of the Maintenance and Support Services. 

For avoidance of doubt, the consents provided in this Policy are in addition to, and do not derogate from or modify the terms of any other consents provided by Customer under the License (nor do they provide an ability to opt-out of consents provided under the License, unless the License specifies otherwise or unless such are required to be provided by applicable law). Furthermore, this Section does not derogate from any other Customer responsibilities elsewhere in this Policy.

10. Exclusions to Maintenance and Support Obligations

Notwithstanding anything to the contrary herein, Morphisec shall have no obligation to provide Maintenance and Support Services with respect to any: (i) Malfunction of any products, services, applications, machines, networks, systems, infrastructure or platforms other than the Morphisec Product (collectively “Third Party Components”), (ii) Malfunction relating to misuse of a Morphisec Product (inclusive without limitation use in an environment, platform or machine for which such Morphisec Product was not intended), (iii) Malfunction related to the interoperation of Morphisec Products with Third Party Components, unless the Morphisec Product documentation specifies it is intended to be used alongside such Third Party Component and the Morphisec Product is the root cause of the Malfunction, (iv) Morphisec Product which has undergone support, maintenance or modifications by any party aside from Morphisec or the partners authorized by Morphisec to do so, or (v) Malfunctions arising from external physical factors such as weather conditions, electrical or network failure, electrical surge, and the like. 

11. Liability Limitations and Warranty Disclaimer

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 WHATSOEVER (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE RESOLUTION OF MALFUNCTIONS THAT MAY BE CONTAINED IN SUPPORTED VERSIONS OF THE SOFTWARE). THE INDIRECT LIABILITY LIMITATIONS, AS WELL AS THE LIABILITY CAPS OF CUSTOMER’S LICENSE (ANY LIABILITY HEREUNDER SHALL BE COUNTED ALONGSIDE ANY LIABILITY UNDER THE LICENSE TOWARDS SUCH LIABILITY CAP) SHALL APPLY TO THIS POLICY (AND THE MAINTENANCE AND SUPPORT SERVICES PROVIDED HEREUNDER) AS WELL.

12. Miscellaneous

Morphisec shall not be liable for any failure or delay in performance caused by circumstances beyond its reasonable control, including without limitation acts of God, fire, flood, inclement weather, war or acts of aggression, terrorism, embargo, accident, labor trouble, shortage of transport, or governmental or court orders or regulations, or rulings. The assignment provisions of the License by virtue of which Customer is entitled to Maintenance and Support Services, as well as the provisions of such License related to governing law and venue and Morphisec’s independent contractor status, shall apply to this Policy. Morphisec may change the terms of this Policy, in which case the change shall apply as of the end of the then current term of Customer’s License (i.e. it shall apply to any subsequent term); otherwise this Maintenance Policy may only be modified by an instrument duly executed by Morphisec and Customer.