This Application Service Level Addendum (“SLA”) governs the license and use of the Application Service under the Agreement (as each such term is defined below) between Fifth Asset Inc., d/b/a DebtBook (“DebtBook”), and Customer and is subject to the terms of the Agreement. This SLA is subject to change at DebtBook’s discretion so long as such changes do not result in a material reduction in the level of availability of the Application Service or service credits available hereunder during the purchased subscription term.
For the purposes of this SLA, each of the following terms has the meaning set forth below:
means the percentage of time that the Application Service was Available in the Calendar Quarter (as defined in Section 5.2) and is calculated in accordance with Section 5.2.
means the total number of minutes in the Calendar Quarter during which the Application Service was Available. Actual Uptime is measured by subtracting the total number of minutes of Unplanned Downtime in the Calendar Quarter from the total number of minutes of Scheduled Uptime in the Calendar Quarter.
means, collectively, any agreement between DebtBook and the Customer applicable to the Application Service, including, if applicable, the Order Form and the Master Subscription Agreement or DebtBook’s General Terms & Conditions, as the case may be.
means DebtBook’s debt and lease management software-as-a-service application, as more particularly described in the Agreement.
means, subject to the terms of this SLA, that Customer’s Users are able to access the Application Service.
means any inability to access the Application Service, or any other interruption or shutdown of the Application Service, resulting from or due to any of the following:
(a) anynon-scheduled emergency maintenance necessary to protect the performance, availability, stability, or security of the Application Service, including those initiated by DebtBook in accordance with Sections 8.1 through 8.3 of this SLA;
(b) Internet congestion or slowdown, failure of the internet, or failure of Customer’s network;
(c) circumstances reasonably believed by DebtBook (or any third-party hosting provider) to be a significant threat to the normal operation of the Application Service, the operating infrastructure, the facility from which the Application Service is provided, or otherwise relating to access to or the integrity of Customer Data(e.g., a critical vulnerability, virus, hacker, or malware or denial of service attack);
(d) data transmission failures outside the control of DebtBook and not caused by DebtBook’s negligence or willful misconduct;
(e) any scheduled maintenance or maintenance windows, planned outages, emergency maintenance, or unplanned downtime (i) undertaken at the request or direction of or as otherwise agreed by Customer that requires the Application Service to be temporarily taken offline or (ii) otherwise occurring because of any actions or omissions taken by DebtBook at the request or direction of Customer;
(f) the failure or malfunction of Customer’s or any third party’s equipment, software components, software applications, systems, or other technology and/or integrations developed by or for Customer that are running on or interacting with the Application Service, in each case not solely owned or controlled by DebtBook;
(g) system administration, commands, or file transfers performed by Customer Users or representatives;
(h) factors outside DebtBook’s reasonable control, including, but not limited to, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including DebtBook’s third-party hosting provider or other vendors), and other force majeure events;
(i) in full or in part, any acts or omissions of Customer, its employees, contractors, agents, or any other entity over which Customer exercises control or has the right to exercise control, including negligence or material breach of Customer’s obligations under the Agreement;
(j) any permitted suspension or termination of Customer’s right to use the Application Service due to Customer’s or its Users’ breach of the Agreement, as set for thin such Agreement;
(k) Customer’s lack of availability or delay in responding to incidents that require Customer participation for source identification and/or resolution, including meeting Customer responsibilities for the Application Service;
(l) performance or security issues that result from Customer’s failure to accept the application of patches made available by DebtBook;
(m) failures or fluctuations in electrical, connectivity, network, or telecommunications equipment or lines due to circumstances outside of DebtBook’s reasonable control;
(n) Customer combining or merging the Application Service with any hardware or software not supplied by DebtBook or not identified by DebtBook in the Documentation as compatible with the Application Service; and
(o) any modification or changes to the configuration of any version of the Application Service not made by DebtBook or not identified by DebtBook in the Documentation.
means the total number of minutes in the Calendar Quarter during which the Application Service is not Available due to scheduled or announced Application Service or system maintenance.
means the total number of minutes in the Calendar Quarter, less (a)the total number of minutes of Scheduled Downtime in the Calendar Quarter and(b) the total number of minutes in which the Application Service is not Available due to any or all Excluded Events occurring during such Calendar Quarter.
means the total number of minutes in the Calendar Quarter during which the Customer had complete loss of ability to access the Application Service, excluding Scheduled Downtime and any time during which the Application Service or any Application Service component is not Available due to an Excluded Event. Unplanned Downtime will be calculated beginning on the second consecutive detection of Unplanned Downtime within a five-minute period and will end when the unplanned downtime has been resolved, in each case as detected by DebtBook’s internal monitoring systems.
Each capitalized term used but not otherwise defined in this SLA has the meaning given to such term in the Agreement.
DebtBook will use commercially reasonable efforts to make the Application Service Available to Customer 24 hours a day, 7 days a week, 365 days a year, except during Scheduled Downtime, Excluded Events, and as otherwise set forth in the Agreement and this SLA.
Customer access to the Application Service is through the Internet. DebtBook is not responsible for Customer’s network connections or for conditions or problems arising from or related to Customer’s network connections (e.g., bandwidth issues, excessive latency, network outages) or caused by the Internet. DebtBook uses its own internal monitoring systems to monitor Application Service Availability at all times. DebtBook will notify Customers of any identified issues that will impact Application Service Availability as soon as practicable via email to Customer’s designated point of contact.
Except as otherwise set forth in the Agreement, DebtBook will use commercially reasonable efforts to make the Application Service Available for a Calendar Quarter uptime percentage of 99.9% (the “Application Service Availability Target”).
Measurement of Actual Service Availability begins on the date that the production environment for the Application Service has been made available for access by Customer in accordance with DebtBook’s standard business process. Following the end of each of calendar quarter of the purchased subscription term (January – March; April – June; July– September; October – December) (each, a “Calendar Quarter”), DebtBook measures the Actual Service Availability by dividing the Actual Uptime by the Scheduled Uptime and multiplying by 100. All Scheduled Downtime and Unplanned Downtime will be rounded up or down to the nearest one-minute increment, with increments equal to or greater than 30 seconds being rounded up to the next minute. Final determinations of the length of the cumulative periods of Scheduled Downtime and Unplanned Downtime over a Calendar Quarter shall be based on DebtBook’s internal server monitoring equipment and records, which is accessible to the Customer via URL at https://status.debtbook.com.
Customer may request a report detailing the Application Service Availability (“Availability Report”) within 15 days of the end of the prior Calendar Quarter by sending such a request to DebtBook at firstname.lastname@example.org. Any claims relating to the accuracy of the Availability Report shall be deemed waived if notice of such dispute is not received within 15 days of the date DebtBook provides such Availability Report to Customer. DebtBook shall be the final arbiter of all determinations of Actual Service Availability and failure to meet the Application Service Availability Target in accordance with this SLA.
Subject to the terms of Section 7.2below, if (1) DebtBook fails to meet the Application Service Availability Target in any Calendar Quarter during Customer’s subscription term (“Application Service Availability Failure”)and (2) Customer is not in breach of the Agreement, then Customer may request to receive the following extensions to the subscription term of the Application Service that experienced the Application Service Availability Failure in accordance with the following (the “Service Credits”):
Meets Application Service Availability Target
Less than 1% below Application Service Availability Target
More than 1% below Application Service Availability Target
Service Credits for the affected Application Service shall be cumulative and shall extend the term of Customer’s subscription as set forth in the most recent Order Form for the Application Service at no cost to Customer. Any renewal by Customer of the affected Application Service shall be effective after all issued Service Credits have been fully utilized. Notwithstanding anything in this SLA to the contrary, the maximum number of Service Credits that DebtBook will issue during a calendar year is 60 days. Except as set forth in Section 7.4, Service Credits may not be exchanged for or converted to monetary amounts.
Customer must request any Service Credit potentially due hereunder no later than: (a) 30days of the end of the Calendar Quarter in which the Application Service Availability Failure occurred or (b) 15 days after receiving the Availability Report. Service Credit requests must be made by contacting DebtBook at email@example.com.Customer waives any right to Service Credits not requested by it in accordance with the terms of this Section 7.2. If (1) the Application Service Availability Failure is validated by DebtBook’s internal system monitoring records and (2)Customer is not in breach of the Agreement, DebtBook shall issue the Service Credits to Customer.
If the Application Service experiences an Application Service Availability Failure of below 99.0% for two consecutive Calendar Quarters during the subscription term, Customer may terminate its subscription to the Application Service experiencing such failure effective 10days following the date of DebtBook’s receipt of written notice, and Customer will receive a prorated refund of any amounts pre-paid for the period of the subscription term remaining following the effective date of termination of the affected Application Service. Any termination of the Agreement for repeated failure to meet the Application Service Availability Target is subject to the terms and conditions of the Agreement.
If Customer has outstanding and unused Service Credits for a Application Service following the expiration or termination of the subscription term of the affected Application Service, then Customer shall be entitled to a monetary refund equal to the daily license fees that would be payable by Customer under its subscription for the affected Application Service at the time of the Application Service Availability Failure (excluding any fees payable for a private tenant or environment, or managed or professional services associated with such Application Service), multiplied by the number of days of Service Credits owed to Customer as set forth above; provided, however, that such refund shall first be applied as a credit to Customer’s next invoice for any other DebtBook software or Software-as-a-Application Service offering licensed by Customer.
In no event shall any unavailability or failure of DebtBook to meet the Application Service Availability Target or other parameters under this SLA be deemed to be or constitute a breach by DebtBook of this SLA. Customer’s sole and exclusive remedy for DebtBook’s failure to meet the Application Service Availability Target is the issuance of the Service Credits as set forth in Section 7.1 for the affected Application Service only. Customer’s sole and exclusive remedy for DebtBook’s repeated failure to meet the Application Service Availability Target at below 99.0% for two consecutive Calendar Quarters is the right to terminate the subscription to the affected Application Service in accordance with Section 7.3.
DebtBook performs changes to cloud hardware infrastructure, operating software, product software, and supporting application software to maintain operational stability, availability, security, performance, and currency of the Application Service. For changes that are expected to cause service interruption, DebtBook will endeavor to provide prior notice of the anticipated impact. ForCustomer-specific changes and upgrades, DebtBook will work to coordinate the maintenance periods with Customer where possible. The durations of the maintenance periods for scheduled or planned maintenance are not included in the calculation of Unplanned Downtime minutes in the quarterly measurement period for Application Service Availability. DebtBook uses commercially reasonable efforts to minimize the use of these reserved maintenance periods and to minimize the duration of maintenance events that may cause Application Service interruptions. All Customer-relevant Application Service notifications will be posted on the homepage located within the purchased Application Service.
DebtBook may periodically be required to execute emergency maintenance to protect the security, performance, availability, or stability of the Application Service. Emergency maintenance may include program patching and/or core system maintenance, as required. DebtBook will work to minimize the use of emergency maintenance and, where reasonably practicable, will endeavor to provide Customer prior notice of any emergency maintenance requiring a service interruption.
To help ensure continuous stability, availability, security, and performance of the Application Service, DebtBook reserves the right to perform major changes to its hardware infrastructure, operating software, applications software, and supporting application software under its control. Each such change event is considered planned maintenance and may cause the Application Service to be unavailable for up to 24 hours. DebtBook will endeavor to provide prior notice of the anticipated unavailability.
The fees paid by Customer for the Application Service include DebtBook’s provision of the technical support services described in this SLA (“Technical Support”). Additional fees are applicable for any other DebtBook support service offerings or other professional or consulting services purchased by Customer.
Technical Support becomes available on the start date of the Application Service subscription term and ends upon the expiration or termination of the Application Service subscription term set forth in the applicable Order Form, as extended, if applicable, by any Service Credits issued under Section 7.1 (the “Applicable Support Period”).DebtBook is not obligated to provide the Technical Support described in this SLA beyond the end of the Applicable Support Period.
Customer’s technical contacts and other Users of the Application Service are the sole liaisons between Customer and DebtBook for Technical Support and will be responsible for communicating with and providing timely and accurate information and feedback to DebtBook in connection with the Technical Support. Customer’s technical contacts must be knowledgeable about the Application Service and the environment to help resolve service issues and to assist DebtBook in analyzing and resolving Technical Support requests. When submitting a Technical Support request, Customer’s technical contact should have a baseline understanding of the problem being encountered and an ability to reproduce the problem to assist DebtBook in diagnosing and triaging the problem. To avoid interruptions in Technical Support, Customer must notify DebtBook whenever technical contact responsibilities are transferred to another individual.
Technical Support includes:
• 24 x 7 access to the web-based Technical Support Site located at https://support.debtbook.com (or such other address designated by DebtBook for Technical Support requests) to log Technical Support requests. Access to the Support Site is limited to Customer’s designated technical contacts and other Authorized Users of the Application Service;
• Diagnosis of problems or issues with the Application Service;
• Reasonable commercial efforts to resolve reported and verifiable errors in the Application Service so that the Application Service performs in all material respects as described in the Documentation.
• Access to community forums; and
• Technical and non-technical Customer service assistance during normal DebtBook business hours (Monday through Friday, 9:00 AM to 7:00 PM EST except during holidays).