Form E.9
Service Levels - Software
1.Service Availability Commitment. The Software shall be operational at least 99.999% of the time in any given month during the term of the Agreement. The “Operational Percentage” means the percentage of the total time during any given month that the Softwareis not subject to an Outage. An outage (“Outage”) means that Software fails to operate in accordance with Licensee’s configuration selection. Outage does not include service suspension (i) for reasons outside of Licensor’s sphere of control (as described in Section 4 of this SLA) or (ii) during times of maintenance (as described in Section 5 of this SLA). If a dispute arises about whether or not an Outage occurred, Licensor shall make a determination in good faith based on its system logs, monitoring reports and configuration records, which Licensor shall make available for auditing by Licensor and Customer at Customer’s and/or Licensor’s request. The “Outage Percentage” means the total duration of an Outage during a given month divided by the total time during such month.
2.Outage Reporting Process. Customer must inform Licensor’s Customer Support Department in writing or by email within ten (10) hours of the time it first notices an Outage or first believes that there has been an Outage. Failure to comply with this requirement will forfeit Customer’s right to receive a remedy for the Outage as described in Section 3 of this SLA.
3.Remedy. If the Operational Percentage is less than 99.999%, and if Licensor has fulfilled all of its obligations under the Agreement and none of the exceptions in Section 4 of this SLA applies, Customer shall have the following sole and exclusive remedy: Licensor will provide Customer with a pro-rata credit on Customer’s Softwarefee for the month in which the Outage occurred. The pro-rata credit shall be calculated by multiplying the Outage Percentage with Customer’s total monthly Software fee to Licensor (for the applicable Customer Order) in the month during which the Outage occurred. For clarity, the Software fee for an applicable Customer Order for a given month shall equal the following fee charged by Licensor to Customer, as may be applicable, either (i) 100% of the License Fee for that month, and (ii) 33% of the Maintenance Fee for that month. Furthermore, if Customer experiences one (1) or more Outage in each of three (3) consecutive calendar months and/or three (3) or more Outages in any period of thirty (30) consecutive days, Customer may terminate the applicable Statement of Work upon thirty (30) days prior written notice.
4.Exceptions. Customer shall not have any remedies under the Agreement, including this SLA, in connection with any circumstances addressed in Section 18.8, “Force Majeure” of the Licensor Agreement.
5.Maintenance. To ensure optimal performance of the Software, Licensor reserves the right to perform unscheduled emergency maintenance at any time. Additionally, Licensor reserves the right to perform scheduled maintenance that is designed not to impact the Software at any time. Licensor will make all reasonable attempts to schedule maintenance events that are expected to have an impact on the Software between 10:00 p.m. Pacific Time on Fridays and 12:00 p.m. Eastern Time on Sundays.