Service Level Agreement

Service Level Agreement

1. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.

2. 1. Services
   As part of the Services, Licensor shall utilize its Hosting Environment for purposes of hosting the Software and the Licensee Information in accordance with the details set forth in the Agreement. Licensor shall be responsible for installing, configuring and maintaining the Software in such Hosting Environment.
   
   
3. 2. Service Levels
   As of the Effective Date and continuing during the term of this Agreement, Licensor shall perform the Services so that they meet or exceed the service levels, if any, set forth herein (the “Service Levels”).
   
   As of the Effective Date and continuing during the term of this Agreement, Licensor shall implement measurement tools and methods in order to measure and report on its performance of the Services against the applicable Service Levels. If Licensor fails to meet or exceed any such Service Levels, Licensor shall perform a root cause analysis of such failure and shall promptly take corrective actions. Licensee shall provide reasonable support and assistance requested by Licensor to discover the cause or a cure for the reported failure.
   
   If requested by the Licensee, Licensor shall provide Licensee with a performance report showing Licensor’s performance against the applicable Service Levels, which shall be delivered to Licensee within ten (10) days.
   
   

   1. 2.1. Availability

      1. 2.1.1. Service Level

         Licensor will provide no less than ninety-nine point nine percent (99.5%) Software and Services availability during the applicable Service Level Period, as calculated on a monthly basis, subject to the exclusions below.

      2. 2.1.2. Certain Definitions

         "Available For Use" shall mean that all of the supported functions and features of the Software and Services are capable of sending and receiving data to and from the Internet.

         "Availability" shall mean the portion (in percentage terms) of Scheduled Uptime that the Software and Services are actually Available for Use. The method for calculating Availability is shown below.

         "Scheduled Uptime" shall mean the applicable Service Level Period, as specified herein.

         "Service Level Period" means 24x7: 24 hours a day, 7 days a week, 365 days a year

         "Time Unavailable" shall mean any period of time during the applicable Service Level Period that the Software and Services are not Available For Use.

      3. 2.1.3. Exclusions
         Time Unavailable shall not include the aggregate amount of time during which the Software and Services are not Available For Use due to:
         1. Scheduled maintenance, provided that such scheduled maintenance occurs during scheduled maintenance windows, currently between the hours of Friday 10:00 pm and Sunday 4:00 pm, Eastern US Time (the “Scheduled Maintenance Window”);
         2. Emergency maintenance – Licensor may perform any reasonably required, emergency maintenance work outside of the Scheduled Maintenance Window with one (1) hour prior electronic mail or other notice to Licensee;
         3. Interruptions in third party networks that prevent Internet users from accessing the Services, provided that the data center is served by redundant connections to the internet from multiple internet service providers;
         4. Acts outside of Licensor’s control, including but not limited to, (i) changes resulting from government, political, or other regulatory actions or court orders, and (ii) force majeure items, provided that Licensor has taken commercially reasonable precautions to minimize the potential impact of such force majeure items.

         For clarity, any time during which the Software and Services are not Available For Use due to interruptions in electric power services serving the Hosting Environment shall not be excluded from Time Unavailable. The Hosting Environment shall be supported by on-site power generators sufficient to support normal operations for a minimum of five (5) consecutive days.

      4. 2.1.4. Calculation
         

         Availability of the software and Services is calculated in the following way:

         24x7

         Scheduled Uptime = (Total Time (24/7)) – (Scheduled Maintenance Windows)
         For example: August 2005
         (24 hours x 31 days x 60 minutes) – (4 weekends x 42 hours x 60 minutes)
         44,640 minutes – 10,080 minutes = 34,560 minutes
         % Availability = (Scheduled Uptime – Time Unavailable)/Scheduled Uptime
         For example: Hypothetical 300 minutes unavailable
         (34,560 – 200)/34,560
         (33,360/34,560) = 99.42
         99.42%
         

         Note: 200 minutes = 3 hours and 20 minutes Time Unavailable

      5. 2.1.5. Termination Rights
         

         In addition to other applicable remedies, Licensee may immediately terminate the Agreement, in whole or in part, without a cure period if:

         • there are three (3) Service Level Failures in any twelve (12) month rolling period; or
         • the Services are not Available for Use for more than six (6) consecutive hours; or
         • the Availability in a calendar month is less than ninety-eight percent (98%) for two (2) calendar months in any twelve (12) month rolling period; or
         • the Availability in a calendar month is less than ninety-seven percent (97%) two (2) times in any six (6) month rolling period; or
         • the Availability in a calendar month is less than ninety-five percent (95%).