This Support Services Agreement ("SSA"), made and entered into as of the Effective Date of the End-User License Subscription Agreement between the parties, is a legal agreement between Subscriber and Neverfail (as those terms are defined in the EULA) and is an Appendix to the Neverfail End-User License Subscription Agreement (“EULA”). The SSA sets forth the terms and conditions under which Neverfail provides maintenance services for the Licensed Software to Subscriber. This SSA is subject to the terms and conditions of the EULA between the parties. The terms in this SSA shall have the same meaning as in the EULA and as set forth herein. 

If you click on the “I Accept Terms of the License Agreement” when you download or install the Licensed Software or sign a paper copy of the EULA, Subscriber will be deemed to have read, understood, and are bound by all the terms of this SSA.  If Subscriber does not agree to and does not comply with the terms of this SSA and the EULA, Subscriber is not eligible to receive Support Services.

1.                   DEFINITIONS

“Business Day” means any day (other than Saturday or Sunday) excluding holidays.

“Defect Repair” means a correction of an Error.

 “Designated Support Contacts” means an individual that Subscriber has registered on Neverfail Online Support System as a contact person.

“Documentation” means explanatory and informational materials concerning the Licensed Software, in printed or electronic format. Documentation does not include software source or object code.

“Effective Date” means the Delivery Date or the date of the Purchase Order for the Licensed Software, whichever date is earlier.

 “End-User” means the employees or independent contractors of Subscriber who are authorized by Subscriber to access or use the Licensed Software.

“Error” means any material error or defect in the Licensed Software that causes the Licensed Software not to substantially conform to the Documentation.

“License Fees” means the Licensed Software fees charged by Neverfail or Partner to Subscriber for the Licensed Software as listed in a Purchase Order.

“Licensed Software” means Neverfail’s proprietary high availability and disaster recovery software products in object code form made generally available for license, including Documentation and Updates.

“Out Of Hours Fees” means the fees charged by Neverfail to Subscriber for Support Services.

“Partner” means an authorized Neverfail Licensed Software reseller or distributor.

 “Problem” means any actual or perceived failure or function impairment, including but not limited to an Error, which causes reduced functionality to the Licensed Software.

“Purchase Order” means a written document, executed by the parties or by Subscriber and Partner which identifies one or more of the following: the Licensed Software including Quantity, License and Support Fees, payment terms and other terms and conditions.

“Resolution Goal” means the assessment of the Error difficulty of reported Problems which affects the time required to resolve it.

“Support Period” means any twelve (12) month period as measured from the Effective Date, or the anniversary of the Effective Date, of this Agreement during which Subscriber will pay for and is then entitled to receive Support Services from Neverfail.

“Support Portal” means Neverfail’s technical support website used to securely share support, documentation and other business information with Subscriber via the Internet. The website can be used by the Subscriber to submit Tickets and report Problem or Error reports to Neverfail Support.

“Support Services” means support and maintenance services for the Licensed Software as set forth herein.

 “Updates” means maintenance releases that are made generally available to Subscribers who are eligible to receive Support Services.

 “Use” means (a) accessing, copying, installing or otherwise transferring any portion of any Licensed Software; (b) executing any portion of any Licensed Software, directly or indirectly, using a computer processor or (c) accessing any Designated Computer for the purpose of obtaining or preparing information or data created through the execution of the Licensed Software.

  "Workaround" means a feasible change in procedures whereby an End-User can avoid any harmful effects of a Problem.

2.                   SUPPORT SERVICES 

On-line Technical Assistance.  Neverfail will provide to Subscriber’s Designated Support Contacts the information needed to access Neverfail’s customer support website and to submit support tickets using the Support Portal.  For non-Critical Problems, Neverfail Support will assist the Designated Support Contacts on regular Business Days between the hours of 8:00 a.m. and 5:00 p.m. local time (“Standard Business Hours”). For Critical/Urgent issues, Support service is available 24/7/365 as described in Neverfail SLOs. Neverfail shall notify the Subscriber in writing or via the Support Portal of any changes to call-in numbers and procedures for problem reporting.

Emergency Telephone Number.  Emergency telephone number is available 24/7/365 for customers having a valid Neverfail subscription license and is meant to speed-up the support process for Critical/Urgent problems (“Emergency Support”). Emergency Support tickets can be submitted by dialling Neverfail emergency support phone number as set forth on the Support Portal. Emergency Support tickets for Severity 1 problems will receive a call-back within the response times set forth in Table 1 even if outside of Standard Business Hours.  Emergency Support for Severity 1 problems will focus on getting the Neverfail protected application operational. Once the Neverfail protected application is operational, any additional work required (including getting the Neverfail Software operational and root-cause analysis) will be deferred until Standard Business Hours. There is no charge for Emergency Support calls within Standard Business Hours or for Emergency Support calls for Severity 1 Problems outside of Standard Business Hours. However, outside of Standard Business Hours and if the reported problem not a Severity 1 problem, a fee as described in our KB article detaling Fees For Out-Of-Hours Support Assistance. 

Licensed Software Problem Reporting and Customer Obligations.  Subscriber agrees to submit reports concerning suspected Errors through its Designated Support Contacts. In order to diagnose problems most effectively, the Designated Support Contacts will confirm that all supporting systems (internal network, Internet, server hardware, and the like) are functioning properly before contacting Neverfail customer support.  The Designated Support Contacts will use commercially reasonable efforts to provide Neverfail with the following information:  Neverfail Software Product and Version, date and time of the incident and system hardware and third party software versions, configurations and log files. If the servers were previously working normally, the Designated Support Contacts should also advise what system changes, if any, have been applied to the system prior to when the incident was observed. In addition, Neverfail Support will need a clear description of the Problem and any error codes or messages. If necessary, the Designated Support Contacts will be responsible for providing Neverfail with data or other information concerning Subscriber’s operations that Neverfail reasonably requests in order to reproduce operating conditions similar to those present when the reported Problem or Error was discovered or to otherwise provide the Support Services. Neverfail customer support may redefine problem reporting procedures as needed and post such updated procedures on its customer support web site. In order for Neverfail to be able to achieve the Resolution Goals set forth in Table 1, Subscriber will provide logs and possibly access via a remote connection, so that Neverfail may provide assistance and diagnose Problems and Errors.

Defect Repairs.  Neverfail will investigate each suspected Error reported by the Designated Support Contacts and determine whether in Neverfail’s judgment the reported problem is, in fact, an Error, and whether such Error is in the Licensed Software or in the Documentation.  If Neverfail determines that there is an Error in the Licensed Software or in the Documentation, Neverfail will use commercially reasonable efforts to provide an avoidance procedure, a Workaround, or a Defect Repair in accordance with the response guidelines set forth in Section 3.7 below.  

Licensed Software Updates.  As permanent solutions are developed for known Errors in the Neverfail Software, they will be incorporated from time to time in planned Updates. Neverfail will make such Updates available to Subscriber as they are released. Neverfail will also provide instructions and/or documentation that Neverfail considers reasonably necessary to provide guidance for the installation of the Update and a smooth transition to use the Update.  In the event Neverfail, in its discretion, revises the appropriate Documentation, Neverfail will make such Update available to Subscriber at no additional charge in electronic form via Neverfail’s on-line Knowledge Base as it becomes available. Neverfail will provide access to the on-line Knowledge Base to Designated Support Contacts throughout all Support Periods for which Subscriber has paid Support Fees. 

3.                   CONDITIONS AND LIMITATIONS OF SERVICES 

Problems Caused By Third Party Products, Errors In Use of the Neverfail Software and Modifications to the Neverfail Software.  Neverfail will have no obligations or responsibilities of any kind hereunder with respect to problems caused in the use or functioning of the Neverfail Software by any hardware or software product (including but not limited to operating systems, networks, and third party software not provided to Subscriber by Neverfail) other than the Neverfail Software, by any Error in the use of the Neverfail Software inconsistent with the Documentation, or by any modification of the Neverfail Software by any person or entity other than one authorized by Neverfail.  If Support Services hereunder are rendered for any Problem caused by any of the foregoing or for troubleshooting with respect to any of the foregoing, or if Neverfail Support Service efforts are increased as a result, Neverfail reserves the right to impose charges at its standard commercial time and materials rates for all such services. A Neverfail Support engineer will notify a Designated Support Contact as soon as the billable status of the call is determined. Such Designated Support Contact may then terminate the call at that time without charge.

Maintenance of Current Releases of the Licensed Software.  Subscriber should promptly install Updates to maintain the Neverfail Software in the most current revision level. Support Services will be provided only for the most current released version through the previous two major releases after the current major version becomes generally available (“Supported Release(s)”) subject to the end of availability of any product. If Neverfail announces the end of availability of a product, Neverfail with then support the then current release for an additional eighteen months after the end of availability date. Neverfail will have no obligation to support Subscriber where Subscriber is using a version of the Neverfail Software that is not a Supported Release, so long as Neverfail has made a currently Supported Release of the Neverfail Software available to Subscriber.

Access to Subscriber’s Servers.  Subscriber may need to supply Neverfail with access to their servers running the Neverfail Software and use of all information reasonably necessary for Neverfail to render these services, subject to any security requirements or other company procedures of Subscriber.  Neverfail may also reasonably request the use of a specific remote access software package. If Neverfail is not permitted or is unable to access the Neverfail Software, it may result in slower resolution times or inhibit Neverfail’s ability to resolve a problem.

Backup Procedures.  Subscriber is responsible for maintaining procedures external to the Neverfail Software for reconstruction of lost or altered files, data, or programs to the extent it deems necessary, and for actually reconstructing any lost or altered files, data, or programs.  Neverfail will not be responsible for any lost or altered files, data or programs.

Technical Support Level. "Level" means a certain type of service.  Definitions are as follows:

Level 1. Problem verification and determination.  First call support and specialist level technical support, as required.  Technical support staff (i) responds to technical inquiries regarding the Neverfail Software configurations and (ii) provides Problem diagnostics services for identifying Problems and generic application faults, analysis, and where possible, Problem resolution. If specialist level technical support is required, then Subscriber’s technical support staff (i) performs Problem isolation, replication and interoperability testing, (ii) provides remote diagnostics services, and (iii) implements a resolution for a Problem that is not the result of an Error.

Level 2.  Problem resolution.  Senior level technical support.  Escalation resource to Level 2. Technical support staff (i) performs  troubleshooting based on Neverfail Software logs and remote sessions, if required, (ii) isolates a Problem/Error and (iii) implements a resolution, including development of a Workaround, which restores operations. In the case of an Error, the staff will attempt to identify the source of the Error, create a reproducible test, and document the details of the Error for escalation.

Level 3.  Backup engineering and technical support.  Staff isolates a Problem or Error and implements a resolution, including, but not limited to, Error correction.

Response Guidelines.  Table 1 below outlines Neverfail’s customer support response and resolution goals by Severity levels and the service level for the support program purchased by Subscriber. The Problem’s Severity along with the support level will determine the speed of Neverfail’s response.   The initial response is an e-mail or telephone acknowledgement by Neverfail of the Problem reported by Subscriber’s Designated Support Contacts.  For the purposes of this SSA, Problems are assigned a Severity classification at the time of Subscriber’s Problem report to Neverfail.  The Severity level classification of a Problem may change based upon new information.

4.                   MISCELLANEOUS

Termination. Neverfail may terminate the SSA in accordance with the terms and conditions of the EULA, including but not limited to, breach of the EULA by Subscriber or the non-payment of Subscription License Fees.

Entire Agreement. This SSA, the EULA (which is incorporated into the SSA and made a part hereof for all purposes) constitute the entire agreement of the parties with regard to the matters referred to herein, and supersede all prior oral and written representations and agreements, if any, of the parties in respect hereto.