Service Level Agreement
This Service Level Agreement (“SLA”) shall govern the provision of certain Services by Backbone PLM, Inc. (“Backbone”) to the person or entity identified on the Order Form as the customer of the Services (“Customer“).
Subject to the terms and conditions of this Agreement, Backbone will use commercially reasonable efforts to make the Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this SLA (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet.
For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Backbone pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to the Agreement.
Service Level Failures and Remedies
In the event of a Service Level Failure, Backbone shall issue a credit to Customer in the amount of five percent (5%) of the monthly Fees for each period of 30 or more consecutive minutes of downtime for the Services due for the Service Period the Service Level Failure occurred (each a “Service Credit”); provided that: (a) Backbone has no obligation to issue any Service Credit unless: (i) Customer reports the Service Failure to Backbone immediately on becoming aware of it; and (ii) requests such Service Credit in writing within 5 days of the Service Level Failure; and (b) in no event will a Service Credit for any Service Period exceed 15% percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred and that no more than one such credit will accrue per day.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section sets forth Backbone’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
Backbone will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services at times that Backbone believes to be as least disruptive to its customers; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Services that will exceed fifteen (15) minutes unless an emergency requires otherwise (“Scheduled Downtime”).
The Services include Backbone’s standard customer support services in accordance with the Backbone service support schedule then in effect, which Backbone may amend from time to time in its sole discretion.