Service Level Policy
1. Service Level.
Subject to the terms herein, during the Term, Provider shall provide the online components of the Service and make them operational and available to Customer at least 99.9% of the time, except for: (i) Scheduled Downtime, or (ii) unavailability of the Service due to the exclusions described in Section 4 below (“Performance Commitment”). If Provider does not meet the Performance Commitment, Customer will receive the applicable Service Credit described below. This service level policy (“SLA”) states Customer’s sole and exclusive remedy for any failure by Provider to provide the Service in accordance with the Performance Commitment.
- a. “Downtime” means, for a customer, if the Service, is not accessible to, or functional for, the Customer. Downtime is measured based on server-side error rate.
- b. “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month. If Customer’s contract for the Service is for a partial month, then the numerator and denominator of the Monthly Uptime Percentage will only include those days during which Customer received the Service.
- c. “Scheduled Downtime” means those times where Provider publishes or notifies Customer of periods of Downtime with at least 3 business days advance written notice. Scheduled Downtime must be scheduled on weekdays between 9 pm and 6 am Pacific time or on weekends. When Scheduled Downtime occurs in accordance with this Section, such Scheduled Downtime is not considered Downtime for purposes of the Performance Commitment.
- d. “Service Credit” means the following:
2. Definitions.
The following definitions will apply to the Provider Performance Commitment.
| Monthly Uptime Percentage | Percentage of Monthly Fee Refundable to Customer |
|---|---|
| 99.9% or higher | None |
| 98.0% to 99.89% | 10% |
| 95.0% to 97.99% | 15% |
| under 95.0% | 20% |
3. Remedies.
Within thirty days following the end of each calendar month, Provider will provide Customer a report reflecting the total amount of Scheduled Downtime and Downtime, and the Monthly Uptime Percentage for the immediately preceding calendar month. Provider will calculate the applicable Service Credit and identify such amount in each such report and include a monetary refund for the applicable Service Credit with each such report. Except as set forth herein, Service Credits may not be exchanged for, or converted to, monetary amounts. In addition, in the event the Monthly Uptime Percentage falls below 99.9% for three consecutive months, Customer may immediately terminate this Agreement upon written notice to Provider.
4. Performance Commitment Exclusions.
The Performance Commitment does not apply: (a) to immaterial performance issues; (b) to unavailability of the Service caused by factors outside of Provider’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Provider employees); (c) to unavailability of the Service that result from equipment or software of third parties where such equipment or software is not within the reasonable control of Provider; (d) to unavailability of the Service caused by abuse or misuse of the Service (or any component thereof) by Customer; or (e) to unavailability of the Service caused by use or maintenance of the Service (or any component thereof) by Customer in a manner not materially conforming to the requirements described in the Documentation or the Agreement.