1. Availability.
a. Formula. The Subscription Services will, subject to the exceptions listed below, be available 99% of the time during each calendar month from the time that the Subscription Service is being used in Client’s production environment following completion of applicable Implementation Services (referred to herein as the “Availability Commitment”). The availability of the Subscription Services for a given month will be calculated according to the following formula (referred to herein as the “Availability”):
Availability = ((TMM - TMU) X 100) / TMM
Where: Total minutes in the month = TMM
Total minutes in the month the Subscription Service is unavailable = TMU
b. For purposes of this calculation, the Subscription Service will be deemed to be unavailable (referred to herein as “Unavailable”) only: (i) if the Subscription Service does not respond to HTTP requests issued by Company monitoring software, or (ii) for the duration of an error in the Subscription Service application software which disables functionality of the Subscription Service which is critical to Client’s business to the extent that it renders such Subscription Service product (ie., the applicable SaaS Solution) unusable as a practical matter. Further, the Subscription Service will not be deemed Unavailable for any downtime or outages that result from the exceptions set forth in Section 2 of this SLA. Client acknowledges that Company’S system logs, records and data will provide the basis for SLA calculations and determinations.
2. Exceptions
a. The Subscription Services will not be considered to be Unavailable (and minutes will not accrue as TMU) for any downtime or outages that result from any maintenance performed by Company: (i) during the period of provision of Implementation Services; (ii) during Company’s standard maintenance windows which currently occur Saturdays between 6 a.m. and 9 a.m. USA Eastern Standard Time (collectively referred to herein as “Scheduled Maintenance”); or (iii) during Implementation Services performed at Client’s request which require that the Client’s account to use the Subscription Services be taken off line while such Implementation Services are being performed.
b. The Company network extends to, includes and terminates at the data center located router that provides the outside interface of each of Company’s WAN connections to its backbone network providers (referred to herein as the “Company Network”). The Subscription Service will not be considered Unavailable (and minutes will not accrue as TMU) for any downtime or outages that result from: (i) Client's information content or application programming, acts or omissions of Client or its agents; (ii) delays or failures due to circumstances beyond Company’s reasonable control that could not be avoided by its exercise of due care (including Force Majeure Events); or (iii) failures of the Internet backbone itself and/or the network by which Client connects to the Internet backbone or any other network unavailability outside of the Company Network (e.g., Client’s applicant tracking system).
3. Remedies.
Subject to the exceptions provided for in this SLA, Client will have the rights set forth below.
a. For every one percentage (1%) point of time the Subscription Service is Unavailable, the Client will earn a service credit equal to one percent (1%) of the then-current monthly pro-rata fees.
b. If the applicable Subscription Service fails to achieve the Availability Commitment, then Client will be entitled, as its sole and exclusive remedy, to service credits which shall be applied as a credit against then-upcoming annual subscription fees for the affected Subscription Service or applied to extend the duration of the applicable Subscription Term for the affected Subscription Service.
c. Remedies will not accrue (i.e., no service credits will be issued and an outage will not be considered Unavailable for purposes of this SLA) if there are Fees due but outstanding by the Client to the Company.
d. Upon written request from Client, Company will promptly provide a report specifying the level of Unavailability and service credits due (if any) for the requested month. To receive service credits, Client must submit such request within sixty (60) days after the end of the month to which the request pertains. Service Credits not requested within such sixty (60) day period will be automatically forfeited.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SLA, COMPANY
MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SUBSCRIPTION SERVICES
WILL BE DEFECT FREE, UNINTERRUPTED, TIMELY OR ERROR FREE