Service Level Agreement

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SERVICE LEVEL AGREEMENT

Agreement, together with any exhibits, schedules or riders referenced herein and attached hereto (the "Service Level Agreement" or "SLA") dated as of the ______ day of ___________ 20__ between ________________ with its principal place of business at _____________________________ ("Provider") and ______________, with its principal place of business at ____________________ ("Customer"). 

1.             Service Credit

In the event Provider fails to meet any of the following criteria, Provider shall upon request by Customer refund to Customer from the fees paid by Customer to Provider under this Agreement an amount of $_________ for each such incident, subject to an aggregate of $_________ for any 24-hour period, regardless of the number of such incidents, and further subject to an annual limit of $__________.  The foregoing refund shall be Provider's sole financial obligation with respect to failure to meet goals.

Provider will not be liable to Customer or provide any credit for any failure to meet a service level to the extent that such failure is attributable to the following: (i) acts, omissions or errors of Customer, an end user, or a third party, (ii) breaches of the Agreement by Customer, or (iii) failure of Customer's or an end user's software, hardware, systems or connections, or (iv) Extraordinary Circumstances.

[Alternate Service Credit:  In the event Provider fails to meet any of the following criteria, Provider shall upon request by Customer refund to Customer from the fees paid by Customer to Provider under the Agreement an amount of 5% of the monthly service fee for each such incident, subject to an aggregate of fifteen percent of such fee for any 24-hour period, regardless of the number of such incidents, and further subject to an monthly limit of 75% of the monthly fee.  The foregoing refund shall be Provider's sole financial obligation with respect to Provider's failure to meet goals.] 

[Alternate Service Credit:  From time to time the system may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Provider may undertake from time to time; or (iii) causes beyond Provider's control or that are not reasonably foreseeable by Provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures.

If Provider fails to maintain the below-set-forth level of service availability, Customer may contact Provider and request a credit of 5% of Customer's monthly hosting fee from Provider for that month.  The credit may be used only for the purchase of further products and services from Provider, and is exclusive of any applicable taxes.  The credit does not apply to service interruptions caused by: (i) periodic scheduled maintenance or repairs Provider may undertake from time to time; (ii) errors caused by Customer, including Customer's custom scripting or coding or any security breach caused by Customer or anyone who gained access to Provider's system through Customer's account; and (iii) causes beyond Provider's control or that are not reasonably foreseeable by Provider.  Total service uptime shall be solely determined by Provider and shall be calculated on a monthly basis.]

2.              Application Availability

The Application will be available as follows, exclusive of Scheduled Downtime. 

Monthly Target Service Level

Daily Target Service Level

99.9% of the time, 24 hours/day, 365 days/year

Cumulative unavailability no more than 1 hour during 8am-9pm Eastern Time, 365 days/year

3.             Provider Technical Support Availability; Classification of Priority

Provider technical support will be available 24 hours a day, 365 days per year for Priority 1 and Priority 2 service issues (as defined below), and during regular business hours (8 am to 6 pm Eastern time, Monday through Friday excluding holidays) for other service issues.

Priority

Priorities Assigned Under These Guidelines

Sample Issues

1

·       Problem has significant impact on Customer operations

·       System or major component is down or unusable

·       No Customer acceptable workaround is available

·       Many or all of Customer’s users have no access to Application 

·       System response time significantly degraded from standard

2

·       Problem impacts Customer operations

·       System or component down or malfunctioning

·       Temporary workaround is available

·       Problem impairs Customer’s ability to use system effectively

·       Some of Customer’s users have no access to Application

·       Systems performance is unstable

3

·       Problem has minor impact on Customer operations

·       Problem occurs infrequently

·       Acceptable workaround available

·       Customer has functionality questions

·       Customer requires software/patches for a non-emergency break-fix situation

3.1      Contacting Provider Support; Response Time

All requests to Provider received through any of the methods specified below are handled in the same manner and with the same level of service:

•           During regular business hours, by telephone and email

•           24 hours a day, 365 days per year, by e-mail

Receipt of the error report will be acknowledged as specified below.  Provider shall, after receipt of an error notification, use its best efforts to respond to each notification as indicated below, with a resolution of the issue as indicated below

Priority

Initial Contact Response (Provider support center acknowledgement)

Initial Resolution Commences (Provider technician commences work)

Issue Resolved

1

15 minutes

30 minutes

1 hour

2

1 hour

2 hours

2 hours

3

4 hours

To be mutually determined by Customer and Provider on a case-by-case basis

To be mutually determined by Customer and Provider on a case-by-case basis

4.             Scheduled Downtime

Scheduled Downtime service may occur in accordance with the following schedule.  During these periods monitoring is suspended and such Scheduled Downtime is not calculated as part of Provider availability commitments.

  • Major site changes shall only occur on a Sunday between the hours of 12:00 a.m. and 12:00 p.m. Eastern Time unless jointly agreed to by Customer and Provider.  Provider will provide seven (7) days notice unless jointly agreed to by Customer and Provider.  Customer’s agreement to such request shall not be unreasonably withheld.
  • Patch releases can occur on any day between the hours of 6 am and 8 am Eastern time.  Provider will provide forty-eight (48) hours notice unless jointly agreed to by Customer and Provider. 
  • Network maintenance can occur on any day between the hours of 2 am and 7 am Eastern time.  Provider will provide forty-eight (48) hours notice unless jointly agreed to by Customer and Provider. 
  • Emergency maintenance—Emergency maintenance can occur when jointly agreed to by Customer and Provider.  Provider will provide maximum practical notice for such maintenance.  Customer’s agreement to such request shall not be unreasonably withheld.

4.1               Definitions related to Scheduled Downtime

  • Major release— Major releases contain upgrades to software, database, system configuration and functionality.
  • Patch release-- This release contains fixes to software defects that were introduced in the prior Major or content release.
  • Network maintenance— Network maintenance can be minor configuration changes to network equipment.   Major configuration changes shall be treated as major. releases and scheduled accordingly.
  • Emergency maintenance— Hardware or software fixes to correct a situation that poses substantial risk of causing service degradation or failure.

5.             Other Definitions

5.1          Availability

  • “Unavailable” and “Unavailability” shall occur during any sixty (60) minute period, when the response time for a web page exceeds fifteen (15) seconds on average during such sixty (60) minute period as measured from a server on the local network.
  • Availability for a month shall be calculated as a percentage using the following formula:
    • the total number of Available Hours for the month converted into minutes minus
    • the total number of minutes of unavailability  and the result divided by
    • the total number of Available Hours for the month converted into minutes.
  • “Available Hours” in a month means the total number of hours in the month minus any Scheduled Downtime during such month.

5.2           Extraordinary Circumstances

"Extraordinary circumstances" include fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, labor difficulties, generalized internet interruptions (through denial of service, worms, telecommunications problems or the like) or any other cause beyond our reasonable control.  Provider take commercially reasonable efforts to protect against and plan for continued service in such circumstances, but Provider cannot guarantee continuous access in the event of such circumstances.  In such events, Provider will use commercially reasonable efforts to cause our ISP and other third party providers of connectivity to maintain and re-establish, when necessary, accessibility.

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