Within this document, the terms “we”, “us”, “our” and “ourselves” refers to the Supplier defined in the Order Form and “you”, “your” and “yourselves” refers to the Customer defined in the Order Form.

Save where provided otherwise in these Software Support Terms or the other documents comprising the Agreement, capitalised terms used herein shall have the meaning given in the General Terms.

 

1. Definitions Applicable to the Software Support Terms

1.1 “Authorised Representatives” means senior members of your internal IT Support team designated by you to us in writing.

1.2 “Business Days” means Monday to Friday excluding public holidays in London, New York, Singapore or Sydney (depending on the local time zone you have selected for your Support Hours in the Order Form).

1.3 “Customer Developed Materials” means any materials, including software, specifically developed by us for you during the performance of any Professional Services which are specifically identified and detailed in a Statement of Work as “Customer Developed Materials”.

1.4 “Equipment” means your designated machines running a supported operating system of the Licensed Software under your exclusive operational control or under the control of a Cloud Provider with access controlled to ensure that only your Employees or Contractors are able to access and use the Licensed Software.

1.5 “Error” means a failure of the Licensed Software to conform to its functional specifications as described in the Documentation, which failure is demonstrable on the Equipment and causes the Licensed Software to be inoperable, to operate improperly, or produces results materially different from those described in the Documentation. Failures resulting from the following are not Errors: (a) your negligence or improper use of the Licensed Software, or (b) your use of the Licensed Software in combination with any third party software not identified as compatible by us. The classification of an Error will be determined according to clause 3 below.

1.6 “Error Correction” means either a modification or addition that, when made or added to the Licensed Software, brings the Licensed Software into material conformity with its functional specifications, or a procedure or routine that, when observed in the regular operation of the Licensed Software, avoids the practical adverse effect of such nonconformity.

1.7 “First Response” is defined in clause 3.4 below.

1.8 “Release” means a version of the Licensed Software that would normally involve minor revisions, minor enhancements and/or bug fixes.

1.9 “Response Period” is defined in clause 3.4 below.

1.10 “Support Hours” are defined in the Table set out in clause 3.2 below according to the level of support you have purchased (Standard, Enterprise or Enterprise Plus) and apply in the local time zone (on business days) as indicated on the Order Form.

1.11 “Support Portal” means the portal made available at support.kx.com.

1.12 “S1”, “S2”, “S3” and “S4” have the meaning identified in clause 3.2 below.

1.13 “Update Frequency” is defined in clause 3.6 below.

1.14 “Version” means a version of the Licensed Software involving entirely new features and/or functionality being added to the Licensed Software but excludes any New Product.

 

2. Software Support Services

2.1 We will provide the following Software Support Services during the Subscription Term in relation to the Licensed Software subject to compliance with the terms of the Agreement:

2.1.1 We will provide a telephone line for S1 issues, and the Support Portal for S2 to S4 issues, exclusively for Authorised Representatives to log Licensed Software related Errors (“Service Desk”) during applicable Support Hours;

2.1.2 We will use our reasonable endeavours to provide a First Response within the Response Period, and updates within the Update Frequencies, set out below (time not being of the essence);

2.1.3 We may, in our sole discretion, correct Errors by “patch” or by issuing a new Release;

2.1.4 We will provide you with new Releases and Versions of the Licensed Software that we may issue from time to time; and

2.1.5 We will provide you with periodic or interim updates to the Documentation that we may issue from time to time.

2.2 The Software Support Services shall apply to the most recent Release of the Licensed Software and for a period of 12 months from the release of the most recent Release and for the same period in respect of the immediately preceding Release of the Licensed Software. If you wish to maintain support for an earlier Release of the Licensed Software after the end of its support life this may be available as an extended support contract at our entire discretion and only with prior written agreement.

2.3 You will make available to us free of charge all personnel, information, systems, facilities and services reasonably required by us to enable us to duplicate a problem and perform maintenance of the Licensed Software including, without limitation, machine details, core dumps, log files, screenshots, runbooks and sample data. Where remote access is not made available by you, this may have an impact on the speed of our response, recovery and remediation, to which reasonable adjustments shall be made. If our personnel are required at your premises to resolve any issue, such personnel shall be chargeable to you at the agreed rate or, if no such rate is agreed, in accordance with our scale of standard rates in place from time to time.

2.4 We will only be obliged to correspond with Authorised Representatives in respect of the supply of the Software Support Services. Authorised Representatives shall use reasonable endeavours to investigate and to resolve any problems prior to contacting us.

2.5 The following are not included within the Software Support Services and shall be provided at our discretion and charged for additionally and may be supplied by us pursuant to the terms of a separate written Statement of Work:

(a) Support of accessories, attachments, machines, systems or other devices other than the Licensed Software;

(b) Any assistance required from us to implement a new Version;

(c) Rectification of lost or corrupted data;

(d) Support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Licensed Software or operating environment by anyone other than us;

(e) Attendance to faults caused by your use of the Licensed Software outside the provisions laid down in the Agreement and Documentation;

(f) Diagnosis and/or rectification of problems not associated with the Licensed Software;

(g) Scripts and materials created or developed during the implementation of the Licensed Software, code within user defined functions, any scripts and utilities written to integrate the Licensed Software into your environment and/or any third party systems, and any other Customer Developed Materials including, but not limited to, user created dashboards, custom reports and custom interfaces;

(h) Any assistance from us that is requested by you subsequent to your breach of clause 2.3 of these Software Support Terms; and

(i) Where you have no Authorised Representatives and seek to refer any Licensed Software related problem directly to us.

2.6 During the Subscription Term you will:

(a) stay compliant with the release policy in clause 2.2 of these Software Support Terms;

(b) implement within a reasonable time all Error Corrections provided by us provided that where you fail to implement a Release, Error Correction or new Version which contains a fix for an Error, you will have no other recourse against us in respect of such Error;

(c) ensure that the Licensed Software and the Equipment are used in a proper manner by competent employees trained in the use of the Licensed Software or by persons under the supervision of such employees or by Authorised Representatives;

(d) keep full security and backup copies of the Licensed Software and of your data bases and computer records in accordance with best computing practice;

(e) not request, permit or authorise anyone other than us to provide the Software Support Services in respect of the Licensed Software; and

(f) co-operate fully with our personnel in the diagnosis of any error or defect in the Licensed Software or the Documentation.

2.7 We are entitled to assume that any of your data which we have access to is backed up and we will not be liable to you or to any other Person for any loss arising out of any failure by you to keep full and up-to-date security copies of the Licensed Software and of your data.

2.8 If a Release or Version addresses a security incident or vulnerability, we will not be liable for any losses you may suffer as a result of any such incidents or vulnerabilities which occur if you do not install that Release or Version promptly.

 

3. Problem Definition and Severities

3.1 The table below defines the severity levels applied to calls arising or reported in the provision of the Software Support Services and the Support Hours, Response Periods and Update Frequencies allocated to each such severity level (according to the level of support you have purchased). The severity of a call may change throughout its duration. For example, an S2 call may be upgraded to S1 if a fault affecting some users spreads to make the Licensed Software unavailable to all users; or an S1 call could be downgraded to S2 if a workaround is provided in advance of fixing a fault.

3.2 The severity level allocated to a call initially will be at our sole discretion. If you believe that events require the severity level to be altered, a request to change the severity level may be made to the Service Desk. The severity level allocated to a call is determined according to the following table:

3.3 Where an issue is considered Severity 1 (S1), this should always be reported to the Service Desk by phone (to the number provided to you for this purpose) for expediency. You must provide dedicated resources to work 24 hours x 7 days on S1 issues. Subject to the foregoing, all other support calls shall be raised via the Support Portal and responses will be provided via that Support Portal, unless otherwise deemed necessary by us.

3.4 Response Period is the time permitted to respond to the call, will be defined per ticket and is dependent upon the severity level of the ticket, as determined in the table above, and the level of support you have purchased. The Response Period shall commence when a Support Portal ticket has been fully and properly logged by you with sufficient information for us to be able to make an initial determination of the severity level of the ticket. Our first response within the Response Period will consist of an acknowledgement on the Support Portal that the ticket has been raised and queued and shall provide an initial determination of the severity level of the ticket (“First Response”). If the initial call is received by phone for a S1 Error, we will raise a ticket (with the same information) on the Support Portal, which shall constitute our First Response.

3.5 Any call other than in relation to S1 Errors which is received outside of Support Hours (where relevant) shall be deemed received at the start of the next business day. In addition, target response times only run during Support Hours (where relevant). So, by way of example, if you have Standard Support and a S2 call is reported at 4pm on Friday, the response deadline shall be by 4pm on Tuesday.

3.6 We will provide updates as to the status of our response to the ticket at the Update Frequencies set out in the table above (“Update Frequencies”). Update Frequencies shall commence from the time of our First Response.