Services Level Agreement (SLA) v2

Last Update May 22, 2018 (version 2.0)

1. Availability. In conjunction with the services described in the applicable Order Form, Master Services Agreement and License and Support Schedule, STORMSOURCE will provide 99.9% system Availability (as defined below) for the Production Environment within STORMSOURCE’s Immediate Control (as defined below).

1.1 “Availability” or “Available” means the STORMSOURCE application system (i.e. Customer’s DaySmart Appointments accounts in shared or dedicated environments) is available for access via the Internet. Availability is based on a monthly 7 day x 24 hour calculation, excluding Scheduled Downtime (as defined below).

The calculation will be as follows:

Availability Percentage = (a – b) x 100 / a

Where “a” is the total number of minutes in a given calendar month, and “b” is the total number of minutes that the application system is not available in a given month. Specifically excluded from “b” in the calculation of the Availability measurement are: (1) a service interruption caused by a security threat until such time as the security threat has been eliminated; (2) reasons of Force Majeure (as defined in the Agreement) or events which are outside Immediate Control (as defined below) of STORMSOURCE; and/or (3) issues arising from misuse of the STORMSOURCE provided Services by Customer or its agents, customers or third party contractors.

1.2 “Immediate Control” is defined below.

“Immediate Control” includes the following:

(a) Application software running on the STORMSOURCE-contracted infrastructure provider.

(b) Database software running on the STORMSOURCE-contracted infrastructure provider.

“Immediate Control” excludes the following:

(a) Services at the data center beyond routing to the Internet Service Provider (“ISP”) circuit termination point (i.e. does NOT include public Internet connectivity)

(b) Customer’s data and content; Customer’s desktop computer hardware and software; and Customer’s network services which allow the Customer to access the Internet. These components are controlled by the Customer and their performance or failure to perform can impair or disrupt Customer’s connections to the Internet and the transmission of data. STORMSOURCE supports Internet Explorer, Firefox, Safari, and Chrome.

(c) Downtime requested or caused by the actions of Customer (i.e. downtime required for code changes or backup restores requested by Customer). In addition, downtime caused by failure of Customer’s Usage Parameter estimates is also excluded.

(d) The flow of data to or from STORMSOURCE’s network and other portions of the Internet which depends on the performance of Internet services provided or controlled by third parties. The actions or inactions of third parties can impair or disrupt Customer’s connections to the Internet or portions thereof and the transmission of data.

(e) For the purposes of the availability calculation, services exclusively in control of the actual infrastructure provider shall not be included in the “immediate control” numbers. Customer accepts the availability of such provider(s) and such provider(s) shall be treated similar to the Public Internet connectivity providers.

1.3 “Scheduled Downtime” during which maintenance, upgrades and repair can occur shall include scheduled downtime that may occur from time to time which will be planned for at least 48 hours in advance and will generally be communicated to Customer prior to finalizing the time frame, unless the downtime is required for emergency security patches or other critical hotfixes. In that case, no prior notice may be provided. All Scheduled Downtime is excluded from the SLA availability calculation.

2. Remedies for Failure to Meet the Availability Objective.

2.1 Service Credit. In the event that STORMSOURCE fails to meet the Availability Objective of 99.9% in any given calendar month (total monthly downtime of less than 44 minutes and 38 seconds), Customer will receive a credit on their next month invoice equal to 5% of the monthly software subscription costs for the applicable account. If STORMSOURCE fails to meet the Availability Objective of ninety-nine point nine percent (99.9%) for three (3) consecutive calendar months, upon thirty (30) days prior written notice to STORMSOURCE Customer may terminate this Schedule upon written notice to STORMSOURCE, regardless of any term remaining on the Agreement, without liability to either party for penalties or damages associated with such termination.

2.2 Force Majeure Event. Where Force Majeure (as defined in this Agreement) prevents full Availability for more than fourteen (14) consecutive days, Customer shall have the right to terminate this Schedule on thirty (30) day’s written notice to STORMSOURCE. In such case, neither party will be liable for penalties or damages arising out of a failure to perform under this Schedule.

2.3 Additional Termination Rights. Except in the case of a Force Majeure Event, if the hosted server hardware is not Available to all of Customer’s users and STORMSOURCE is unable to cure the incident for a period of seven (7) days after STORMSOURCE’S receipt from Customer of written notice stating Customer’s intention to terminate, Customer shall have the right to terminate this Schedule without liability for future payments due under the Master Agreement and Schedules.

2.4 Exclusive Remedies. Notwithstanding the terms of the Master Agreement, the remedies stated in this Schedule are the Customer’s sole and exclusive remedies for failure to meet the Availability Objective.