Note: In the event of any conflict between the terms of the SaaS Subscription Agreement and the terms of this Service Level Agreement, the terms of the Service Level Agreement will supersede.
1. Onclusive Availability SLA. The Service(s) will be fully Available for access by users 99.9% of the time. Compliance will be measured on a calendar month basis. Availability will be calculated by dividing (i) the total number of minutes of Availability, by (ii) the Total Minutes in such month, and then multiplying that amount (the quotient) by 100, excluding Scheduled Maintenance and Emergency Maintenance. Scheduled Maintenance occurs during the hours of (a) 10:00 p.m. Friday to 5:00 a.m. Saturday U.S. Pacific Time; (b) 10:00 p.m. Saturday to 5:00 a.m. Sunday U.S. Pacific Time; or (c) as announced by Onclusive outside of normal Business Hours. “Emergency Maintenance” means unavailability of the Service outside of Scheduled Maintenance hours for the application of urgent patches or fixes, or other urgent maintenance, recommended by Onclusive’s vendors to be applied as soon as possible.
From time to time, Onclusive will make announcements via email regarding maintenance activities that may affect the Services, including possibly the Availability of the Services. Maintenance Announcements are Onclusive’s sole method and requirement for communication of such activities to Company. It is the Company’s responsibility to subscribe to, remain aware of and adjust as necessary to the content and effect of the Maintenance Announcements. Onclusive will use commercially reasonable efforts to schedule maintenance activities that may result in likely, imminent or limited interruptions in the Services, not less than twenty-four (24) hours in advance of the beginning of that activity. Onclusive may determine in its sole discretion that Emergency Maintenance is necessary to protect or preserve the integrity of its Services or infrastructure, which may affect Availability of the Services, at which time Onclusive will make a Maintenance Announcement when the maintenance is performed.
2. Incident Correction. In the event that Company reports to Onclusive a condition affecting the Services or Documentation (an “Incident”) in the Services during Onclusive’s hours of operation, which are Monday through Friday excluding Onclusive holidays (“Business Days”) from 9 a.m. to 5 p.m. Pacific Time (“Business Hours”), and these Incidents are caused by Onclusive’s Services and not by the Company, Onclusive will respond to such reports as follows:
“Priority Level 1 Incident” is an emergency condition which causes the system to stop operating or renders the system completely inaccessible. The condition requires an immediate solution that is not already available to Customer.
“Priority Level 2 Incident” is, other than any Priority Level 1 Incident, any condition which significantly impairs use or continued use of the Services and which Customer cannot reasonably circumvent or avoid on a temporary basis without the expenditure of substantial time or effort.
“Priority Level 3 Incident” is, other than any Priority Level 1 Incident or Priority Level 2 Incident, any limited problem condition which shall be defined as any failure of the system to perform as documented in the Documentation or User Manual, or which Customer can reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort.
“Priority Level 4 Incident” is, other than any Priority Level 1 Incident, Priority Level 2 Incident or Priority Level 3 Incident, a minor problem condition or Documentation Incident, which Customer can easily circumvent or avoid. Additional requests for new feature suggestions, which are defined as new functionality in existing Services, are also classified as Priority Level 4 Incident.
3. Response Times. Onclusive will respond to an Incident, depending on the Incident Priority Level, and provide workarounds or resolutions, within the time frames set forth in the chart below, starting from the time Customer notifies Onclusive of the Incident in writing.
|Incident Priority Level||Response Time||Workaround Time||Resolution Time|
|Priority Level 1 Incident||Within 2 Business Hours from receipt of email||If applicable 3 Business Hours from receipt of email||8 Business Hours from receipt of email|
|Priority Level 2 Incident||Within 5 Business Hours from receipt of email||If applicable, 12 Business Hours from receipt of email||1 Business Day from receipt of email|
|Priority Level 3 Incident||Within 2 Business Days||If applicable, 3 Business Days from receipt of email||10 Business Days|
|Priority Level 4 Incident / Feature||Within 2 Business Days||If applicable, 3 Business Days from receipt of email||Later of 30 days or next major software revision to the Services as designated by Onclusive|
Incident Priority Levels will be determined by Onclusive in a manner consistent with the above descriptions. Customer shall provide commercially reasonable assistance to Onclusive in connection with Onclusive’s efforts to respond to an Incident, including, but not limited to providing reports to enable Onclusive to replicate the Incident.
5. Remedies. In the event that Onclusive fails to comply with any Incident Response SLA, as Company’s sole remedy for such failure, Onclusive will credit Customer’s account an amount equal to the average fees payable by Customer to Onclusive in connection with providing Customer with access to the Services during one (1) day of the calendar month during which the failure occurred (the “Average Daily Fees”) up to an aggregate maximum credit of seven (7) days of Average Daily Fees. To receive any credits, Company must notify Onclusive in writing within 30 days after Company becomes eligible to receive a credit. Failure to comply with this requirement will forfeit Company’s right to receive a credit. The remedies provided herein for interruptions in Services shall apply only while the Company is in good standing and not in breach of any term of the SaaS Subscription Agreement or this SLA, and the Company accounts are paid in full with no amounts past due.
6. Exceptions. This SLA does not apply to circumstances where the Services are affected by operational, connectivity or other service interruptions beyond Onclusive’s sole control, including but not limited to:
a) Outages created or experienced by vendors and partners such as Amazon Web Services and others;
b) Performance issues caused by Company’s equipment or third-party equipment;
c) The Company’s own inability to connect caused by interruptions in its own capabilities or those of its ISP;
d) Interruptions caused by changes requested by the Company and agreed in advance as potentially disruptive to the Services;
e) Events caused either directly or indirectly by acts, errors or omissions by Company, its agents, vendors or end users, including but not limited to negligence, willful misconduct or breach of contract;
f) Any end-users’ own inability to connect caused by issues with their ISP, local settings or circumstances;
g) Events arising from malicious, unlawful or terrorist acts against Company, Onclusive or their employees, contractors, vendors or property;
h) Force majeure events.