Marmalade SDK. Support Agreement

Transcription

1 Marmalade SDK Support Agreement 1. INTRODUCTION 1.1. The terms of this support agreement apply to the performance of the support services in respect of the Marmalade SDK ( SDK ) which has been licensed by Marmalade Technologies Ltd. of 200 St. John Street, London, EC1V 4RN, UK ( Marmalade ) to certain of its Licensees ( Licensees or you ) who have entered into a license for the Marmalade SDK upon the terms of the Marmalade SDK End User License Agreement ( EULA found at between the relevant Licensee and Marmalade, collectively the Parties In order to qualify to receive the Support Services as set out in this Support Agreement, the licensee must hold a valid license type for the Marmalade SDK. Details of the license types under which the Support Services are provided are set out on the Marmalade website at The terms and conditions set out in this Support Agreement form part of the terms of the EULA entered into between Marmalade and the Licensee and subject to those terms of the software license govern Marmalade s obligations to the Licensee for the provision of support services in respect of the SDK for which the licensee has purchased an appropriate license The terms and conditions set out in this Support Agreement also set out the responsibilities of the licensee in respect of the receipt of the support services These terms and conditions contain capitalized terms which are given specific meanings which are set out in this agreement and the EULA. You should familiarize yourself with these terms and their meanings in order to understand the terms and conditions of this Support Agreement accordingly Marmalade reserves the right to vary or alter the terms of this agreement on 30 days notice, such notice to be provided to all qualifying licensees at their registered addresses. 2. SUPPORT SERVICES 2.1. Subject to the payment of the correct License Fee in respect of each qualifying License Type purchased by the Licensee, Marmalade will provide the Licensee with services during the License Term in support of the Licensee s authorized use of the Marmalade SDK and related technologies ( Licensed Products ) in accordance with and subject to the term of this Support Agreement ( Support Services as further described in the remaining provisions of this clause 2) The Support Services (subject to the Licensee s performance and compliance with the provisions set out at clause 3 of this Support Agreement) shall comprise the following: Provision of, and access to a developer support website at ( Support Site ) 24 hours per day,

2 365 days per year excluding any such periods required by Marmalade to make planned or unplanned maintenance necessary in maintaining the Support Site to a high standard Verification and resolution of help-desk tickets raised by the Licensee via the Support Site ( Support Tickets ) where Marmalade shall use reasonable efforts to address each valid Support Ticket raised by the Licensee according to the Priority Levels and Response Targets as set out in clause 3 of this Support Agreement. A valid Support Ticket shall (subject to clause of this Support Agreement) be one of the following: a) claims of a defect or failure of the Licensed Product to operate materially in accordance with it s Specification ( Issue ); b) requests about how to use APIs associated with the Licensed Products; c) requests about how to use tools associated with the Licensed Product; d) requests regarding how to optimize Applications developed using the Licensed Products; e) enhancements to the Licensed Products as suggested by the Licensee; or f) requests for information regarding the Licensed Products, including information on future technology development and releases For the avoidance of doubt the Support Services do not include and Marmalade shall have no obligation to provide responses to invalid Support Tickets which include but are not limited to: a) requests relating to general programming which are not specifically or directly related to the Licensed Product; b) requests related to Application design which are not specifically or directly related to the Licensed product; or c) requests relating to specific Applications, including those developed by Marmalade Technologies Ltd. or it s subsidiaries Access to a suitably qualified technical support manager, who will coordinate the response to Support Tickets posted on the Support Site by the Licensee and provide continuity to the Licensees support requests; and Access to an account manager who will coordinate all other non-support related aspects of Marmalade s relationship with the Licensee relating to (by way of example) additional License Types, specific feature requests which Licensee may wish to be included with the Licensed Products, and other reasonable requests of the Licensee under or in connection with the EULA; and Access to certain Beta Builds of a planned release Beta Build (as such status shall be determined at the sole discretion of Marmalade) prior to commercial or general release of such by Marmalade. For the avoidance of doubt: a) such Beta Builds shall include rudimentary functionality for certain new functions, or new Supported Platforms, or new Supported Devices which (if identified) shall be classed as a Beta Device ; b) the Licensee acknowledges and accepts that access to any such Beta Build of a planned release shall be at the entire discretion of Marmalade; c) the Licensee must be in rightful possession of the relevant License Type under or in connection to the EULA; and d) such License Type may contain certain additional restrictions and or limitations on Marmalade s obligations, to be specified in the notes accompanying such Beta Build. 2.3 Support Services are provided for the current, and immediately preceding commercially available version of the Marmalade SDK (as denoted by a three stage version number in the format X.X.X). Support Services for older versions of the SDK will be determined on a case-bycase basis at the sole discretion of Marmalade.

3 3. LICENSEE OBLIGATIONS 3.1. In order for Marmalade to provide the Support Services as set out in clause 2 of this Support Agreement, the Licensee must perform and/or comply with the following: the Licensee must be technically competent including having the requisite knowledge and experience of using the supported languages of the SDK, mobile device operating systems and communication platforms to the standard reasonably expected by competent professionals (such determination to be made at Marmalade s sole discretion); and the Licensee will provide all such other assistance, cooperation and/or information as requested by Marmalade in response to a Support Ticket The Licensee hereby acknowledged and accepts that the effective performance of the Support Services requires collaborative efforts between the Licensee and Marmalade. The Licensee will fully cooperate with Marmalade in its efforts to provide the Support Services, which may require the Licensee to adopt a specific methodology that Marmalade (in its reasonable discretion) considers appropriate in the use of the Licensed Product. The Licensee agrees to specify the Priority Level for Support Tickets in accordance with the definitions set out in paragraph 5.1 below For the avoidance of doubt Marmalade shall be entitled (in its reasonable discretion) to reallocate a different Priority Level to a Support Ticket to that which has been specified by the Licensee including in circumstances where Marmalade s support function does not (in its reasonable opinion) consider the issue raised warrants the Priority Level assigned to it The Licensee will initially only raise Support Tickets on the Support Site. In the event that the Support Site is not functioning due to maintenance reasons the Licensee shall be entitled to submit Support Tickets by to support@marmalad .com 3.4. The Licensee shall access the Support Site using the separate login details provided to the Licensee in respect of each qualifying and subsisting License Type which Marmalade has purchased Unless otherwise stated by the terms of the License purchased by the Licensee, the Licensee s use of the Support Services is subject to the following restrictions: For Professional License customers the Licensee acknowledges and accepts a Reasonable Use limitation, where Reasonable Use means the total number of new Support Tickets opened in any 30-day period does not exceed a multiple of 5 (five) times the number of active qualifying Licenses which have been purchased by the Licensee For Plus License customers the Licensee is entitled to raise a total of 3 (three) new Support Tickets opened within a 12-month license term for each active qualifying License Any support tickets raised in excess of the numbers in and above will be subject to an additional charge to the Licensee, such charge to be notified by Marmalade to the Licensee and agreed in advance of Support Services being provided If it is determined by Marmalade that a Support Ticket is related to a feature defect that should ordinarily be addressed by Marmalade as a matter of normal business practice, then Marmalade may elect at its sole discretion to credit back an according number of Support Tickets to the Licensee. 4. MANAGEMENT OF SUPPORT TICKETS 4.1. In circumstances where: Multiple individual Support Tickets become a thread of discussion along a single line of enquiry that remains open until a reasonable response to the Support Ticket has been provided;

4 the issue which is the subject matter of the Support Ticket has been resolved or worked around (avoiding practical adverse effects of such issue); or Marmalade s support function determines (in its sole discretion) that the Support Ticket is no longer valid then Marmalade shall be entitled to downgrade or (if applicable) close the relevant Support Ticket Marmalade may provide a number of separate logins to the Support Site up to a maximum of the number of qualifying licenses currently held by the Licensee 5. LICENSE PRIORITY LEVELS AND RESPONSE TARGETS 5.1. When the Licensee raises a valid Support Ticket in accordance with this Support Agreement, the Licensee will (in good faith and acting reasonably) assign to the Support Ticket the relevant priority which the Licensee shall determine by reference to the to the definitions below ( Priority Level ): Priority Level - 1, Urgent - Class A crash or critical bug: the issue is causing a critical problem to the Licensee s ability to use the critical functions of the Software Product and the Licensee cannot continue any development work due to the problem Priority Level - 2, Important - Class B major bug: (i) a material feature of the Software Product is not functioning in accordance with its Documentation; (ii) the Licensee s work flow is severely impaired; and/or (iii) there is no workaround to the issue but the Licensee s development work can continue in a limited manner Priority Level - 3, Normal - Class C minor bug: the Software Product suffers a loss of a non-material feature or causes minor problems, the inconvenience of which does not severely hamper the Licensee s ability to continue the development and/or or such loss of functionality can be restored by a work-around Priority Level - 4, Request for information relating to the Software Product and/or an open Support Ticket that is not an issue which affects the functioning of the Software Product On receiving notification of a Support Ticket (save for any Support Tickets relating to Beta Devices) in accordance with paragraph 5.1 above, Marmalade shall endeavour to provide a response: a) for Professional Licensees raising a Priority Level 1 or 2 ticket within 1 working day; or b) for Professional Licensees raising a Priority Level 3 or 4 ticket, or any tickets raised by a Plus Licensee within 3 working days where a Working Day shall be determined based on the UK calendar and shall mean Mondays to Fridays inclusive, but shall exclude national holidays in England and Marmalade s standard seasonal holidays where declared in advance via Marmalade s website or otherwise in writing to the Licensee If Marmalade does not agree with the Priority Level assigned by the Licensee, or if Marmalade requires further information from the Licensee with respect to the Support Ticket, Marmalade will seek clarification of the from the Licensee and discuss the Priority Level. Marmalade in its sole discretion will determine the final assignment of the priority level for a Support Ticket A response will comprise a report in the form of a Support Ticket raised through the Support Site from Marmalade, and initiating an evaluation process The evaluation process will comprise two phases: a) Assessment phase: Marmalade shall start evaluation, reproduction or investigation of a Support Ticket.

5 b) Resolution phase: Resolves an issue affecting the operation of the Software Product (i.e. a Priority Level 1, 2 or 3 Support Ticket) or have provided a reasonable response to a Priority Level 4 Support Ticket In respect of Support Tickets relating to Beta Devices Marmalade shall endeavour to respond in a timely manner, but which may not meet the response times in paragraph 5.2 taking into consideration the stability and the degree of commercial completeness (e.g. in the case of pre-commercial devices) of such Beta Devices On provision of a valid Support Ticket, Marmalade shall use reasonable endeavours to respond and where possible resolve Support Tickets within the response times set out in 5.2 above, and will prioritise issues based on the assigned Priority Level For Level 4 Request Support Tickets, if the Software Product is already capable of fulfilling the Licensee's requirements, Marmalade will inform the Licensee, otherwise Marmalade will respond with confirmation of request acknowledgement. Submission of a Level 4 Request Support Ticket relating to suggested enhancements for the Software Product to Marmalade does not guarantee the provision or support of such feature, which Marmalade may provide in its sole discretion in a future release.