SERVICE LEVEL AGREEMENT

1. Availability Requirement. SUREPOINT® shall make the Cloud Services Available, as measured over the course of each calendar month during the Term (each calendar month, a “Service Period”), at least ninety-nine and one-half percent (99.5%) of the time, excluding only the time the Cloud Services are not Available solely as a result of one of more Exceptions (the “Availability Requirement”). The Cloud Services are not considered “Available” in the event of any performance degradation or inoperability of the Cloud Services, in whole or in part, that prohibit the Licensee to connect to and use the Cloud Services materially in accordance with its intended purpose of entering time, printing invoices and/or reporting and other intended accounting functions. “Availability” has a correlative meaning. SUREPOINT® shall continuously monitor and manage the Cloud Services to optimize Availability that meets or exceeds the Availability Requirement.

 

2. Exceptions. No period of Cloud 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”):

2.1. Licensee’s or any of its Authorized Users’ misuse of the Cloud Services;
2.2. failures of Licensee’s or its Authorized Users’ internet connectivity;
2.3. internet or other network traffic problems other than problems arising in or from networks actually or required to be provided or controlled by SUREPOINT® or its Subcontractor;
2.4. Licensee’s or any of its Authorized Users’ failure to meet any minimum hardware or software requirements set forth in the General Terms and Condtiions or applicable Service Order;
2.5. a force majeure event described in the General Terms and Conditions;
2.6. disabling, suspension, or termination of the Services pursuant to the General Terms and Conditions;
2.7. any delay or failure of performance caused in whole or in part by Licensee’s delay in performing, or failure to perform, any of its obligations under the General Terms and Conditions;
2.8. failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by SUREPOINT® pursuant to the General Terms and Conditions; or
2.9. Scheduled downtime between the hours specified in Section 3.

 

3. Program Modifications and Maintenance. SUREPOINT® reserves the right to make changes, or permit changes to be made, in the Services and in the manner of providing the Services. Whenever possible, SUREPOINT® will notify Licensee, in writing or via electronic means, of its intent to make changes at least seven (7) days prior to implementation of a new release of the Cloud Services. SurePoint shall make every effort to schedule downtime needed for upgrades generally over the weekends or weekdays between 10:00 PM and 6:30 AM Eastern Standard Time when feasible.

 

4. Remedies for Service Availability Failures.

(a) Subject to Section 5(b) below, if the actual Availability of the Cloud Services is less than the Availability Requirement for any Service Period, such failure shall constitute a “Service Error” for which SUREPOINT® shall issue to Licensee the corresponding service credits specified in this Section 5(a) (“Service Availability Credits”). Any Service Availability Credits due under this Section 5(a) will be applied as follows:

   

(b) In order to receive the Service Availability Credits, Licensee shall submit their request for credit to SUREPOINT® in writing within sixty (60) days of the month where the Availability Requirement was not achieved. In no event will a Service Level Credit for any Service Period exceed thirty percent (30%) of the total Fees that would be payable for that Service Period if no service level failure had occurred.

(c) If the actual Availability of the Cloud Services is less than the Availability Requirement in any two (2) of three (3) consecutive Service Periods, then Licensee may terminate the Agreement given 60 days’ written notice, with no liability, obligation or penalty to Licensee by reason of such termination.

 

5. Limitations. Licensee shall not be entitled to the Service Availability Credits or the right to terminate as described in Section 5(c), above, if Licensee is in material breach of the terms of the General Terms and Conditions at any time during the month in which the Availability Requirement was not met. The remedies set forth in Section 5 are the sole and exclusive remedies for any performance or availability issues for the Cloud Services under the General Terms and Conditions.