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% of the time, except for: (i) Scheduled Downtime, and (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 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.
2. Definitions.
The following definitions will apply to the Provider Performance Commitment.
3. Remedies.
Provider will use commercially reasonable efforts to attain the Performance Commitment defined above. In the event Provider does not meet the Performance Commitment, Customer will be eligible to receive a service credit as described below. The maximum amount of the credit is 1/12 of the annual subscription fees paid and attributable to the online component of the Service that is unavailable for the applicable twelve (12) month period. The service credit is calculated by taking the number of hours the applicable Service was unavailable below the Performance Commitment, and multiplying it by 3% of 1/12 of the applicable annual subscription fees. Any days prior to Customer’s initial use of the Service will be deemed to have had 100% availability. Any unavailability or Downtime used to calculate a prior service credit cannot be used for any future claims. Customer’s sole and exclusive remedy for breach of the Performance Commitment in this Section 3 will be for Provider to provide a credit as provided in this Section 3; on the condition that Customer notifies Provider in writing of such claim within thirty (30) days of becoming eligible for such claim.
4. Performance Commitment Exclusions.
The Performance Commitment does not apply: (a) to any scheduled outages, standard maintenance windows, or 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.
