This on-premises Terms of Service licence agreement (this “Agreement”) between Application Performance Ltd, a UK Company, with its principal place of business at Centaur House, Ancells Road, Fleet, GU51 2UJ (“AP”) and the end user referenced in the Order Form (as defined below) (“Client”) is effective as of the date the initial order form is executed (the “Effective Date”).
EXHIBIT A
Service Support and Maintenance
1) Definitions.
a)
“Community
Support”
. Clients of the Starter Edition, (as specified on the DBmarlin
website at https://dbmarlin.com/pricing) covering a single monitored database
instance only receive support from the DBmarlin community, rather than direct
from AP. This may be accessed through the DBmarlin website at
www.dbmarlin.com/support
.
b)
“Premium
Support”
. Clients who purchase Premium Edition licences (as specified
on the DBmarlin website at https://dbmarlin.com/pricing) are entitled to make
use of the support services defined below.
c)
“Documentation”
means any and all manuals, instructions, specifications and other documents and
materials that AP provides or makes available to Client in any medium and which
describe the functionality, components, features or requirements of the
Service, including any one or more of the installation, configuration,
integration, operation, use, support or maintenance thereof.
d)
“Supported
Release”
. AP will release changes and updates to DBmarlin according to
its own release cycle. The latest release of DBmarlin will always be a
Supported Release. Any other releases made within 12 months prior to the
latest release, and remaining available on the DBmarlin download site (
https://download.dbmarlin.com
) will
also be Supported Releases.
e)
“Error”
means a reproducible failure of the Service to perform in substantial
conformity with the specifications set forth in the Documentation, whose origin
can be isolated to a single cause.
f)
“First
Line Support” means, in connection with the logging, identification,
diagnosis and correction of Errors, the provision of: (a) telephone/e-mail/chat
assistance; and (b) access to technical information on the DBmarlin website for
proper use of the Service.
g)
“Respond”
means AP’s initial communication with Client, whether by telephone, e-mail or
otherwise, acknowledging Client’s request for Services in connection with a
specific Error. “Response” has a correlative meaning.
h)
“Resolve”
means
the identification of a solution or fix to a reported Error, by means of First
Line Support, Second Line Support or other means. This fix may be by means of
an already provided release, provision of a new release, correction of Client
Data, or by any other means agreed between AP and Client.
i)
“Second
Line Support” means, in connection with the identification, diagnosis and
correction of Errors, the provision of: (a) telephone/e-mail/chat assistance;
(b) Remote Services; and (c) engineering expertise. This may involve
on-site
technical support at Client’s premises/Designated Site(s where appropriate and
agreed.
j)
“Severity
Level One Incident” means an Error that causes the Service to not operate
as designed and has a critical impact on Client’s Database Environment and business
operations.
k)
“Severity
Level Two Incident” means an Error that results in a lack of the Service
functionality and materially degrades significant aspects of Client’s business
operations.
l)
“Severity
Level Three Incident” means an Error that impairs the performance of the
Service, but does not substantially affect Client’s business operations.
m)
“Normal
Business Hours” means between
08:00 – 18:00 UK local time, Monday
to Friday, excluding any national or public holidays.
2) Scope of Services. During the Term AP will use commercially reasonable efforts to Resolve any Incidents reported by Client as follows:
a) AP, in its reasonable discretion, will determine the amount of time it will need to spend to attempt to Resolve any specific Incident;
b) AP will initially provide First Line Support to Client to attempt to Resolve the reported Incident; and
c)
AP will
subsequently provide such, if any, Second Line Support as AP, in its reasonable
discretion, deems necessary to attempt to Resolve the Incident.
3) Response Time. During the Term AP shall use commercially reasonable efforts to Respond to Incidents reported by Client within the following timeframes:
a) for a Severity Level One Incident, within 4 hours of AP’s receipt of Client’s notification during Normal Business Hours and
b) for a Severity Level Two Incident, within 12 hours of AP’s receipt of Client’s notification during Normal Business Hours and
c)
for a
Severity Level Three Incident, within 24 hours of AP’s receipt of Client’s
notification during Normal Business Hours
4)
Remote
Services.
Client acknowledges and agrees that AP may provide Remote
Services to Client to assist in analysing and resolving any Incident. Client
agrees to provide AP with access to Client’s systems
to collect
diagnostic, technical and related information, including information about
Client’s computers, systems, network and any Third-Party Materials, relating to
or derived from Client’s use of the Service. Client acknowledges and agrees
that AP may collect, maintain, process and use
this information in the
course of performing the Services under this Agreement, provided that AP shall
only access, control and gather such information that it reasonably believes to
be necessary to assist in analysing and resolving an Incident. At all times
Client’s information will be treated in accordance with AP’s privacy policy, as
amended from time to time, which can be viewed at:
www.dbmarlin.com/privacy-policy or a successor website address.
5)
Optional
Support Services.
AP, in its sole discretion, may provide Optional Support
Services to Client on Client’s request, at AP’s standard hourly rates then in
effect. The terms and conditions of this Agreement govern the provision of any
Optional Support Services delivered by AP to Client.
6)
Maintenance
Releases.
During the Term, AP will provide Client with all
Maintenance Releases under the terms and conditions set forth in the Agreement.
These will be made available on the DBmarlin download site at (
https://download.dbmarlin.com
).
7)
Service
Changes.
AP may, in its sole discretion, change any aspect of the
Service, provided that no such change materially reduces or otherwise has a
material adverse effect on (a) AP’s level of effort in performing the
Services; (b) AP’s obligation to provide the Services under this Agreement; or
(c) Client’s rights under this Agreement.
8)
Subcontractors.
AP
may, in its sole discretion, perform any of the Services by or through third
parties (each, a “Subcontractor“) or any other AP Personnel.
9) Limitations.
a)
Incidents.
AP
has the sole right to determine, in its reasonable discretion: (a) what
constitutes an Incident; and (b) when an Incident is deemed to be Resolved.
b)
Response
Time and Resolution.
AP will use commercially reasonable efforts to: (a)
Respond within the applicable Response time provided in
Section 3;
and
(b) Resolve an Incident, but does not guarantee that it will be
able to Respond within that specific time period or that any Incident will be
Resolved.
c)
Effect of
Client Failure or Delay.
AP is not responsible or liable for any
delay or failure of performance caused in whole or in part by any delay or
failure to perform any of Client’s obligations under the Agreement or this
Agreement in accordance with the respective terms and conditions of these
agreements (each, a “Client Failure“).
10) Exceptions. AP has no obligation to provide Services relating to Errors that, in whole or in part, arise out of or result from any of the following (each a “Service Exception“):
a) the Service, or the media on which it is provided, that is modified or damaged by Client or any third party;
b) any operation or use of, or other activity relating to, the Service other than as specified in the Documentation, including any incorporation in the Service of, or combination, operation or use of the Service in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Client’s use in the Documentation;
c) any negligence, abuse, misapplication or misuse of the Service other than by AP Personnel, including any Client use of the Service other than as specified in the Documentation;
d) any Client Failure, including Client’s failure to promptly install any Maintenance Release that AP has previously made available to Client;
e) the operation of, or access to, Client’s or a third party’s system or network;
f) any beta software, that AP makes available for testing or demonstration purposes, temporary software modules or software for which AP does not receive a licence fee;
g) any breach of or noncompliance with any provision of this Agreement by Client or any of its Representatives; or
h)
any Force
Majeure Event (including abnormal physical or electrical stress).
11) Client Obligations.
a)
Notification.
Client
shall promptly notify AP of any Error and provide AP with reasonable detail of
the nature and circumstances of the Error.
b)
Compliance.
Client
shall comply with all terms and conditions of this Agreement and the Agreement.
c)
Use.
Client
shall use the Service solely in accordance with the terms and conditions set
forth in this Agreement.
d)
Environment.
Client
shall set up, maintain and operate in good repair and in accordance with the
Documentation all environmental conditions and components, including all
networks, systems and hardware, in or through which: (a) the Service operates;
and/or (b) the Client accesses or uses any of the Services.
e) Access. In connection with the performance of the Services, Client shall provide AP Personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable AP to perform its obligations (including the provision of the Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:
i) reasonable, uninterrupted access, both physical and virtual, to the Service and Client’s premises, systems, networks and facilities;
ii) a safe working environment;
iii) reasonable access to appropriate Client personnel, including database, network, systems, operations and applications personnel; and
iv)
all
necessary authorisations and consents, whether from third parties or otherwise,
in connection with any of the foregoing.
f)
Data
Back-up.
Client agrees to back up all data, files and information
prior to the performance of any Services and hereby assumes sole responsibility
for any lost or altered data, files or information.
g)
Technical
Contact.
Client shall designate and maintain throughout the Term at
least one, and preferably two individuals to serve as primary point(s) of
contact for day-to-day communications, consultation and decision-making
regarding the Services (each, a “Technical Contact“). The Technical
Contact(s) shall be the sole contact(s) between Client and AP in connection
with day-to-day matters relating to the provision of Services and be
responsible for reporting Incidents, providing day-to-day consents and
approvals on behalf of Client, and communicating with and providing timely and
accurate information and feedback to AP in connection with the Services. Client
shall ensure its Technical Contact(s) have the requisite organisational
authority, skill, experience and other qualifications to perform these duties.
Client shall use commercially reasonable efforts to maintain the same Technical
Contact(s) in place throughout the Term and provide at least 10 days’ prior
written notice to AP of any replacement or change in the name or contact
information of any Technical Contact
.
h)
Information.
Client
shall provide AP with all information reasonably requested by AP from time to
time relating to Client’s use of the Service, Services or Deliverables,
including information on Client’s hardware, network, systems and any related
Third-Party Materials.
i) Supported Release. Except as otherwise specified in this Agreement, Client must run a Supported Release level of the Service that AP has made available to its Clients. Client shall install Maintenance Releases within a timely manner, as they are made available by AP, to ensure that Client remains on a Supported Release.
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