SERVICE LEVEL AGREEMENT
1.1 “Service Level.” The measurements upon which the quality of Services is measured.
1.2 “Basic Service Level.” Any Service Level set forth in this Agreement or an applicable Purchase Order that is not a Critical Service Level.
1.3 “Critical Service Level.” Any Service Level that is described as “critical” in this Agreement or an applicable Purchase Order.
1.4 “Downtime.” Any period where the Services are not available to the end users, regardless of reason.
1.5 “Exempt Downtime.” Downtime where the parties have previously agreed upon the time and duration of such Downtime. Only Downtime occurring during such previously-agreed period shall be deemed to be Exempt Downtime. Exempt Downtime may also consist of regularly scheduled events if such events are described in an applicable Purchase Order.
1.6 “Performance Credit.” A single Performance Credit shall be one day of subscription fees calculated on a monthly basis assuming a 30-day month.
1.7 “Unscheduled Downtime.” All Downtime that is not Exempt Downtime.
- Procedures. The establishment of Service Levels will be accomplished as follows:
2.1 Commencement. Service Levels are established as provided herein and will be measured starting on the “go live” date for the Services. Service Level reporting will be put into effect starting on the “go live” date for the Services.
2.2 Service Level Changes. The Parties may agree to add, delete or modify Service Levels. All such changes must be mutually agreed to in writing. Should new technology or improved measurement capabilities be deployed by DBX that impact the Service Level reports, DBX and Customer will agree upon a new measurement process and amend this Exhibit as appropriate. Should DBX and Customer agree to implement a new reporting mechanism, DBX and Customer will establish new Service Levels to be aligned with the new reporting mechanism.
2.3 Downtime Incident Reporting. Upon receipt of a written request from Customer for a prior calendar month requesting information regarding a specific instance of Downtime, DBX will provide Customer with a related incident report from which Customer may determine any Downtime. In order to receive a Performance Credit in connection with a particular instance of Downtime, Customer must notify DBX within thirty (30) days from the time Customer receives the incident report. Failure to comply with this requirement will forfeit Customer’s right to receive a Performance Credit for the applicable instance of Downtime.
2.4 Excused Failures. Failure to meet Service Levels will not be deemed to be a failure by DBX if one of the following conditions exist: (i) the failure is mutually agreed not to be the fault of DBX; (ii) the failure of Customer to carry out relevant obligations causing the failure; (iii) failure of equipment not provided by or maintained by DBX; or (iv) Force Majeure Events.
2.5 Performance Credits. Performance Credits shall accrue due to Basic Service Level Failures (defined below) and Critical Service Level Failures (defined below). All Performance Credits are cumulative and issuance of Performance Credits shall not be deemed to waive any other right of Customer under the Agreement.
2.6 Basic Service Level Failure. If, in any given month, DBX fails to meet a Basic Service Level for the services described herein (each, a “Basic Service Level Failure”), DBX shall issue one (1) Performance Credit to Customer, which shall be applied to the next billing period charges.
2.7 Critical Service Level Failure. If, in any given month, DBX fails to meet a Critical Service Level for the services described herein (each, a “Critical Service Level Failure”), DBX shall issue three (3) Performance Credits to Customer, which shall be applied to the next billing period charges.
- Service Level Metrics. In addition to any Service Levels described in detail in the Purchase Order, and unless these Service Levels are expressly modified in the Purchase Order, the following Service Levels are deemed to be default metrics and will apply to the Agreement.
3.1 Availability. The Services shall be online and available 99.75% of the time, excluding Exempt Downtime, as calculated for each calendar month. If the Services are available between 99.5% and 99.74% of the time, a Basic Service Level Failure shall be deemed to have occurred. If the Services are available between 99.00% and 99.49% of the time, two Basic Service Level Failures shall be deemed to have occurred. If the Services are available between 98.50% and 98.99% of the time, a Critical Service Level Failure shall be deemed to have occurred. If the Services are available less than 98.50% of the time, two Critical Service Level Failures shall be deemed to have occurred, and no fees shall be due to DBX from Customer for the month that such failures have occurred.
3.2 Backups. Failure by DBX to produce an Incremental Backup shall result in one Basic Service Level Failure. Failure by DBX to produce a Weekly Backup shall result in one Critical Service Level Failure.
- Maximum Performance Credits. Notwithstanding the foregoing, the aggregate maximum number of Performance Credits to be issued by DBX to Customer for events that occur in a single calendar month shall not exceed five (5) Performance Credits.
- Termination Option for Chronic Problems. Either party may terminate this Agreement and without liability or penalty by notifying the other party within ten (10) days following the occurrence of either of the following: (i) Customer experiences more than five (5) Unscheduled Downtime periods in any three (3) consecutive calendar month period; or (ii) Customer experiences more than eight (8) consecutive business hours of Unscheduled Downtime due to any single event. Such termination will be effective thirty (30) days after receipt of such notice by the terminating party.
- Suspension. If DBX is materially hampered in fully performing hereunder for any reason outside of DBX’s reasonable control including without limitation any Force Majeure Event (all of which events are herein called “Disability”) Customer may suspend use of the Services and its obligations to make subscription fee payments to DBX during the period of such Disability.