Service Levels

1.  Service Level Standards.  Provider will at all times during the term of this Agreement maintain the following service levels (collectively, the “Service Levels”) for the Hosted Services:

1.1 Availability Service Level.  Provider will provide 99.995% Hosted Service Availability over one-month periods, excluding any Maintenance (as defined below) that result in the Hosted Services not being available to any Customer user, as measured and monitored from Provider’s facilities.  Service Availability will be calculated on a monthly basis using the following formula:  [(Actual Availability divided by Total Scheduled Availability) multiplied by 99.995%]. (Each percentage failure calculation shall be rounded up to the next highest full percentage, e.g. If the difference between the availability requirement and actual availability is a .9% failure, then the percentage difference would be rounded to 1% resulting in a 10% credit.) The following definitions will apply with respect to the calculation of Service Availability:

(a) “Actual Availability” means Total Scheduled Availability minus Downtime, in minutes.

(b) “Downtime” means the time (in minutes) that users of the Hosted Services are not able to (a) access the Hosted Services, (b) perform ordinary functions to use or receive Hosted Services in accordance with Specifications, or (c) utilize the Hosted Services for normal business operations due to failure malfunction or delay.  Downtime does not include any unavailability of the Hosted Services due to Maintenance.

(c) “Maintenance” means time (in minutes) that the Hosted Services are not accessible to Customer due to maintenance, including, but not limited to, for maintenance and upgrading of the software and hardware used by Provider to provide the Hosted Services.  Maintenance includes scheduled maintenance and unscheduled, emergency maintenance.  Provider will provide Customer with at least forty eight (48) hours prior written notice of any scheduled maintenance.  Provider will provide such notices to Customer by email to an address provided by Customer. Maintenance in any given month will not exceed thirty minutes per month, and will only be performed on between the hours of 11:00 p.m. and 3:00 a.m. (PST).  Any time during which the Hosted Services are unavailable to Customer due to maintenance or other activity by Provider for which Provider fails to give notice, which exceeds the permitted time allotment, or which occurs outside of the foregoing permitted hours will be included in the calculation of Downtime.

(d) “Total Scheduled Availability” means 7 days per week, 24 hours per day, excluding Maintenance, in minutes.

1.2 Exceptions. No period of Hosted Service degradation or inoperability will be included in calculating Availability to the extent that such downtime or degradation is due to any of the following ("Exceptions"):

(a) customer's or any of its Authorized Users' misuse of the Hosted Services;

(b) failures of Customer's or its Authorized Users' internet connectivity;

(c) internet or other network traffic problems other than problems arising in or from networks actually or required to be provided or controlled by Provider or its Subcontractor; or

(d) customer's or any of its Authorized Users' failure to meet any minimum hardware or software requirements set forth in the Specifications; or

(e) scheduled Downtime as set forth in Section 1.3. 

1.3 Scheduled Downtime. Provider shall notify Customer at least 48 hours in advance of all scheduled outages of the Hosted Services in whole or in part ("Scheduled Downtime"). All such scheduled outages shall: (a) not exceed an average of 30 minutes per month; (b) be scheduled for weekends; and (c) occur no more frequently than once per week; provided that Provider may request for Customer's approval extensions of Scheduled Downtime above four hours and such approval by Customer may not be unreasonably withheld or delayed. 

1.4 Backups.  Provider will backup all Customer data entered into the Hosted Services since the last backup daily to Provider’s backup location.  Provider will create a full backup (complete data copy) at least once per week at such backup location.  Provider will maintain all backup files for at least one hundred eighty (180) days.  Provider will ensure that backups do not cause system downtime. Provider will ensure that daily incremental backups in combination with weekly full backups are complete so that no more than 24 hours-worth of data will be lost in the event of a disaster.  In the event of a system failure, Provider will restore data as requested by Customer within 24 hours of Customer’s written request.

2. System Response Time Requirement.  Provider will at all times during the course of this agreement maintain the response time of 2.5 seconds.

2.1  System Response time.  "System Response Time" means the time beginning with an Authorized User's action to request feedback within the Hosted Service and ending with completed transmission to such Authorized User of the feedback by the Hosted System.

2.2 System Response Time Credit. If the daily average Response Time of the Hosted Services is greater than the Response Time Requirement for any day, such failure shall constitute a Service Error for which Provider shall issue to Customer a service credit for such day ("System Response Time Credit"). The System Response Time Credit amount shall be $1 per day in which the daily average System Response Time is not less than System Response Time Requirement.

3. SLA Credits.  If Provider fails to meet any of the Service Levels, Provider will pay Customer credits calculated as follows (the “SLA Credits”):

3.1 SLA Credits for Service Availability Service Level Failure.  If the Availability during any given month falls below 99.995%, Provider will provide Customer with a SLA Credit equal to the percentage of the total monthly fee applicable to the month in which the Service Level failure occurred corresponding to the Availability Level set forth in the chart below:

Availability Level - SLA Credit

• 99.1-99.995% - 1% of total monthly fee applicable to month in which failure occurred

• 96.6-99% - 10% of total monthly fee applicable to month in which failure occurred

• 95-96.5% - 25% of total monthly fee applicable to month in which failure occurred

• < 95% - 30% of total monthly fee applicable to month in which failure occurred

3.2 SLA Credit Procedures.  Provider will credit all SLA Credits accrued to Customer in the month in which the SLA Credits accrue, provided that if no further invoices will be submitted to Customer hereunder, Provider will pay such SLA Credits to Customer within thirty (30) days of the end of the month in which such SLA Credits accrue.

4. Chronic SLA Failure. If the actual availability of the hosted services is less than the availability requirement in any two (2) of six (6) consecutive service periods or the daily average system response time is less than the system response time requirement for fifteen (15) days in two (2) consecutive calendar months, then, in addition to all other remedies available to customer, customer may terminate this Agreement and/or the applicable Service Order on written notice to provider with no liability, obligation or penalty to customer by reason of such termination.

5. Service Availability and System Response Time Reports. Upon request, provider shall provide to Customer a report describing the availability and other performance of the hosted services during such service period as compared to the availability requirement and specifications. The report shall be in electronic or such other form as customer may approve in writing and shall include, at a minimum: (a) the actual performance of the Hosted Services relative to the availability requirement and specifications; and (b) if Hosted Service performance has failed in any respect to meet or exceed the availability requirement or specifications during the reporting period, a description in sufficient detail to inform customer of the cause of such failure and the corrective actions the provider has taken and will take to ensure that the availability requirement and specifications are fully met.

Maintenance and Support  

Provider will maintain and support the Hosted Service to ensure solid and reliable connectivity and access by Customer and its users and that the Hosted Service performs and operates in accordance with the Specifications and as set forth in this Schedule and the other terms and conditions of this Agreement or the respective Service Order.  Provider will promptly repair, without any additional charge, Service Software or any portion thereof, that have any bugs, defects or errors or any issues degrading the Hosted Services (collectively, “Errors”).  Provider will provide hosting support on a 24x7 basis, 365 days per year.

1. Updates and Upgrades. Provider will update the Service Software and make available to Customer any and all patches, enhancements, updates, upgrades and new versions of the Service Software that Provider makes generally commercially available (“Updates”).  Any such Updates will be deemed part of the Licensed Software as that term is used herein and will be covered by the maintenance and support services set forth in this Schedule.  Provider represents and warrants that no Update (i) will impair the operation or disable or inhibit any functions or features of the Hosted Service or cause a loss of functionality as provided in the Specifications or cause performance of the Hosted Service to be degraded; or (ii) adversely affect form, fit, function, reliability, safety or serviceability of the Hosted Service or its compliance with all of the requirements of this Agreement.

2. Support Service Responsibilities. Provider shall:

(a) correct all Errors in accordance with this schedule, including by providing defect repair, programming corrections and remedial programming;

(b) ensure that each of its personnel performing any maintenance and support services are experienced, knowledgeable and qualified in the use, maintenance and support of the licensed software;

(c) provide Customer with remote assistance for help in using and operating the Hosted Services and to accept reports of Errors in the Hosted Services;

(d)  provide online access to technical support bulletins and other user support information and forums, to the full extent Provider makes such resources available to its other customers for services identical to or substantially similar to the Hosted Services; and

(e) respond to and Resolve Support Requests as specified in this Schedule.

2.2 Contact Information. Provider will provide contact information for technical support to Customer upon execution of the Agreement. Provider may change any of the provided contact information from time to time by delivery of not less than thirty (30) days prior written notice to Customer, so long as at least one number or address is at all times available for each means of contact.

3. Service Monitoring and Management. Provider shall continuously monitor and manage the Hosted Services to optimize Availability that meets or exceeds the Availability Requirement. Such monitoring and management shall include:

(a) proactively monitoring on a twenty-four hour by seven day basis all Hosted Service functions, servers, firewall and other components of Hosted Service security; 

(b) if such monitoring identifies, or Provider otherwise becomes aware of, any circumstance that is reasonably likely to threaten the Availability of the Hosted Services, taking all necessary and reasonable remedial measures to promptly eliminate such threat and ensure full Availability;

(c) if Provider receives knowledge that the Hosted Services or any Hosted Service function or component is not Available (including by written notice from Customer pursuant to the procedures set forth herein or in the applicable Service Order):

(i) confirming (or disconfirming) the outage by a direct check of the associated facility or facilities;

(ii) if Provider's facility check in accordance with clause (i) above confirms a Hosted Service outage in whole or in part: (A) notifying Customer in writing pursuant to the procedures set forth herein or in the applicable Service Order that an outage has occurred, providing such details as may be available, including a Provider trouble ticket number, if appropriate, and time of outage; and (B) working all problems causing and caused by the outage until they are Resolved as Critical Service Errors in accordance with the Support Request Classification set forth below, or, if determined to be an internet provider problem, open a trouble ticket with the internet provider; and notifying Customer that Provider has fully corrected the outage and any related problems, along with any pertinent findings or action taken to close the trouble ticket.

4. Service Maintenance. Provider shall continuously maintain the Hosted Services to optimize Availability that meets or exceeds the Availability Requirement, set forth in Schedule A. Such maintenance services shall include providing to Customer and its users:

(a) All updates, bug fixes, enhancements, new releases, new versions and other improvements to the Hosted Services, including the Service Software, that Provider provides at no additional charge to its other similarly situated customers; and

(b) All such services and repairs as are required to maintain the Hosted Services or are ancillary, necessary or otherwise related to Customer's or its users' access to or use of the Hosted Services, so that the Hosted Services operate properly in accordance with this Agreement and the Specifications.

5. Data Center Operations: If a subcontracted data center is used to provide Hosted Services, some basic protections for Customer are as follows:

5.1 Data Center Services. Services to be provided by the data center, with responsibilities explicitly listed to perform daily data backups and recovery of data from backups upon reasonable request.  All request for recovery of data from backups as a result of Errors, are at no cost to Customer and, shall be recovered within 24 hours of request.  Requests for recovery of data from backups that are not due to Errors will be done at cost to Customer in accordance with Provider’s hourly rate sheet.

5.2 Monitoring. Responsibility of Provider to monitor the data center subcontract to ensure their compliance with contract terms; and if Provider has to contract with a different data center in order to remain in compliance with this agreement or for any other reason, they will do so at their own cost and will manage the transition to another data center in a manner that minimizes the impact on the Customer’s users.  Provider shall provide Customer not less than ninety (90) days’ notice prior to any change in data center location, performance, capability and or risk.  Customer may terminate this agreement at no cost for any reason if Provider fails to provide such notice, or if such change adversely impacts the performance of services delivered by Provider.

5.3 Reporting. Upon request, Provider shall provide to Customer, a SSAE 16 report for all hosting locations from which Provider provides services to Customer.

6. Support Requests. In the event that Customer reports to Provider any Error, Customer shall classify its requests for Service Error corrections in accordance with the descriptions set forth below (each a "Support Request"), the Support Request Classification to be reasonably determined by Customer. The Customer Service Manager shall notify Provider of Support Requests by e-mail, telephone or such other means as the parties may hereafter agree to in writing.

7. Support Request Response Times, Resolution. Times, and Corresponding Support Level Credits. Response and Resolution times will be measured from the time Provider receives a Support Request until the respective times Provider has (i) responded to, in the case of support response time and (ii) Resolved such Support Request, in the case of Resolution time. "Resolve" (including "Resolved", "Resolution" and correlative capitalized terms) means that, as to any Service Error, Provider has provided Customer the corresponding Service Error correction and Customer has confirmed such correction and its acceptance thereof.  Provider will respond to such Support Requests during regular business hours (Monday through Friday, 8 a.m. to 6 p.m. EST) as follows:

Updated: 9/16/20