Catalyst Service Level Agreement SERVICE LEVEL AGREEMENT
Catalyst Service Level Agreement SERVICE LEVEL AGREEMENT (“SLA”), between DataFinch Technologies, Inc., a Georgia corporation with its principal place of business at 47 Perimeter Center East, Suite 640, Atlanta, GA 30346-2006 (“DataFinch”) and the person using Catalyst (“Client”). RECITALS 1. DataFinch sells data management software, such as Catalyst (“Catalyst”), that is available to users who subscribe to its services. 2. Client desires to purchase a subscription(s) to use Catalyst. Accordingly, the parties agree as follows: 1.1
Definitions 1.1.1 “Annual Uptime Percentage” is calculated by subtracting from 100% the percentage of five (5) minute periods during the Service Year in which Catalyst was in the state of Downtime. 1.1.1.1 If Client have been using Catalyst for fewer than 365 days, Client’s Service Year is still the preceding 365 days, though any days prior to Client’s use of the service will be deemed to have had 100% availability. 1.1.1.2 Any downtime occurring prior to a credit claim cannot be used for future claims. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion (defined below). 1.1.2 “Downtime” means that Catalyst cannot be accessed from at least two different physical locations during a five minute period. 1.1.2 “Eligible Credit Period” means a single month in a calendar year, and refers to the monthly billing cycle in which the most recent Downtime event included in the SLA claim occurred. 1.1.3 “Force Majeure Event” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence and the observance of reasonable care, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstances materially and adversely affects the ability of Party to perform its obligations under this SLA, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this SLA and to mitigate the consequences thereof. 1.1.4 “Service Credit” means a dollar credit, calculated as set forth below, that DataFinch may credit back to an eligible Client account.
Catalyst Service Level Agreement
1.1.5 “Service Year” is the preceding 365 days from the date of an SLA claim. 1.1.6 “Unplanned Outage” means any Downtime that the Client is not given notice of at least seventy-two (72) hours in advance. 1.2
Other Definitional Provisions. 1.2.1
Each term defined in this SLA has its defined meaning when used in any other document associated with this SLA unless the term is otherwise defined in that document. In that event, the term has the meaning that particular document assigns it.
1.2.2
References to “Sections,” “Exhibits,” “Addendums,” and “Schedules” are to Sections, Exhibits, Addendums and Schedules of this SLA, unless otherwise specifically provided.
1.2.3
The words “including,” “includes,” and “include” are deemed to be followed by the words “without limitation.”
1.2.4
References to a Person include that Person’s permitted successors and assigns and, in the case of any governmental Person, the Person succeeding to the relevant functions of that governmental Person.
1.2.5
All references to statutes and regulations include
1.2.6
2.
i.
Any past and future amendments of those statutes and related regulations; and
ii.
Any successor statutes and related regulations.
All references in this SLA to “Dollars” or “$” refer to lawful currency of the United States of America.
Governing Policy. This Service Level Agreement (“SLA”) is a policy governing the use of Catalyst between DataFinch and Client. 2.1 This SLA applies separately to each organizational account using Catalyst. 2.2 Unless otherwise provided herein, this SLA is subject to the terms of the Service SLA. DataFinch reserves the right to change the terms of this SLA in accordance with the Service Agreement.
3.
Term. This SLA shall be in effect whenever and for as long as the Client uses Catalyst.
3.
Service Commitment
Catalyst Service Level Agreement
3.1 DataFinch will use commercially reasonable efforts to make Catalyst available with an Annual Uptime Percentage of at least 99.90% during the Service Year. 3.2 In the event DataFinch does not meet the Annual Uptime Percentage commitment, Client will be eligible to receive a Service Credit. 4.
Eligibility and Calculation of Service Credits 4.1 If the Annual Uptime Percentage for Client drops below 99.90% for the Service Year, Client is eligible to receive a Service Credit equal to 10% of Client’s invoice for the Eligible Credit Period. 4.2 To file a claim, a Client does not have to have wait 365 days from the day the service was initiated or 365 days from any previous successful claims. A Client can file a claim any time Annual Uptime Percentage over the trailing 365 days drops below 99.90%. 4.3 DataFinch will apply any Service Credits only against FUTURE payments otherwise due from Client; provided that, DataFinch may issue the Service Credit to the credit card that was used to pay for service for the billing cycle in which the error occurred. 4.4 Service Credits shall not entitle Client to any refund or other payment from DataFinch. 4.5 A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than $1.00. 4.6 Service Credits may not be transferred or applied to any other account. 4.7 Unless otherwise provided in the SLA, Client’s sole and exclusive remedy for any unavailability or non-performance of DataFinch or other failure by DataFinch to provide Catalyst is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of Client’s use of Catalyst.
5.
Credit Request and Payment Procedures 5.1 To receive a Service Credit, Client must submit a request via e-mail message to [email protected]. 5.2 The credit request must: (i) (ii) (iii)
Include Client’s username prefix in the subject of the e-mail message; Include, in the body of the e-mail, the dates and times of each incident of unavailability Be received by DataFinch within thirty (30) business days of the last
Catalyst Service Level Agreement reported incident in the SLA claim. 5.3 If the Annual Uptime Percentage of such request is confirmed by DataFinch and is less than 99.90% for the Service Year, then DataFinch will issue the Service Credit to Client within one (1) billing cycle following the month in which the request occurred. 5.4 Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. 6.
SLA Exclusions 6.1 The Service Commitment does not apply to any unavailability, suspension or termination of Catalyst, or any other DataFinch performance issues: (i)
(ii) (iii)
(iv) (v)
Caused by factors outside of DataFinch’s reasonable control, including any Force Majeure Event or Internet access or related problems beyond the demarcation point of DataFinch; That result from any actions or inactions of Client or any third party; That result from Client’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within DataFinch’s direct control); That result from failures of individual instances not attributable to Donwtime; or Arising from DataFinch’s suspension and termination of Client’s right to use Catalyst in accordance with the Service Agreement.
6.2 If availability is impacted by factors other than those explicitly listed in this SLA, DataFinch may issue a Service Credit considering such factors in DataFinch’s sole discretion. 7.
General Provisions 7.1 Damages. IN NO EVENT SHALL DATAFINCH BE LIABLE TO THE CLIENT FOR PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS SLA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2 Entire Agreement. This SLA represents the entire agreement between the parties regarding the subject matter hereof. 7.2.1
This SLA supersedes in all respects any and all prior oral or written negotiations, discussions, commitments, representations, agreements and
Catalyst Service Level Agreement other understandings between the parties with respect to the subject matter of this SLA, and all such prior understandings are merged herein. 7.2.1
This SLA cannot be modified or terminated, nor may any of its provisions be waived, except as specifically provided in this SLA or by a written instrument signed by the party(s) against which enforcement is sought.
7.3 Amendment. This SLA may only be amended if such amendment is in writing and signed by both DataFinch and Client. 7.4 Severability. The invalidity or unenforceability of any provision of this SLA shall not affect the validity or enforceability of any other provisions of this SLA. 7.5 Non-Waiver. The waiver, express or implied, by either of the parties of any right or any failure to perform or breach by the other party, shall not constitute or be deemed as a waiver of any other right or any other failure to perform or breach by the other party, whether of a similar or dissimilar nature. 7.6 Captions. Headings and titles contained in this SLA have been inserted for reference purposes only and shall not be considered part of this SLA in construing this SLA. 7.7 Construction. The language in all parts of this SLA shall be in all cases construed according to its fair meaning, and not strictly for or against any party. 7.8 Governing Law. This SLA is governed by the laws of the State of Georgia without giving effect to Georgia's conflict of laws principles. The parties consent to the jurisdiction of the courts of the State of Georgia and the United States District Court located in Georgia for any dispute arising out of a breach of this SLA.
Definitions 1.1.1 “Annual Uptime Percentage” is calculated by subtracting from 100% the percentage of five (5) minute periods during the Service Year in which Catalyst was in the state of Downtime. 1.1.1.1 If Client have been using Catalyst for fewer than 365 days, Client’s Service Year is still the preceding 365 days, though any days prior to Client’s use of the service will be deemed to have had 100% availability. 1.1.1.2 Any downtime occurring prior to a credit claim cannot be used for future claims. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion (defined below). 1.1.2 “Downtime” means that Catalyst cannot be accessed from at least two different physical locations during a five minute period. 1.1.2 “Eligible Credit Period” means a single month in a calendar year, and refers to the monthly billing cycle in which the most recent Downtime event included in the SLA claim occurred. 1.1.3 “Force Majeure Event” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence and the observance of reasonable care, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstances materially and adversely affects the ability of Party to perform its obligations under this SLA, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this SLA and to mitigate the consequences thereof. 1.1.4 “Service Credit” means a dollar credit, calculated as set forth below, that DataFinch may credit back to an eligible Client account.
Catalyst Service Level Agreement
1.1.5 “Service Year” is the preceding 365 days from the date of an SLA claim. 1.1.6 “Unplanned Outage” means any Downtime that the Client is not given notice of at least seventy-two (72) hours in advance. 1.2
Other Definitional Provisions. 1.2.1
Each term defined in this SLA has its defined meaning when used in any other document associated with this SLA unless the term is otherwise defined in that document. In that event, the term has the meaning that particular document assigns it.
1.2.2
References to “Sections,” “Exhibits,” “Addendums,” and “Schedules” are to Sections, Exhibits, Addendums and Schedules of this SLA, unless otherwise specifically provided.
1.2.3
The words “including,” “includes,” and “include” are deemed to be followed by the words “without limitation.”
1.2.4
References to a Person include that Person’s permitted successors and assigns and, in the case of any governmental Person, the Person succeeding to the relevant functions of that governmental Person.
1.2.5
All references to statutes and regulations include
1.2.6
2.
i.
Any past and future amendments of those statutes and related regulations; and
ii.
Any successor statutes and related regulations.
All references in this SLA to “Dollars” or “$” refer to lawful currency of the United States of America.
Governing Policy. This Service Level Agreement (“SLA”) is a policy governing the use of Catalyst between DataFinch and Client. 2.1 This SLA applies separately to each organizational account using Catalyst. 2.2 Unless otherwise provided herein, this SLA is subject to the terms of the Service SLA. DataFinch reserves the right to change the terms of this SLA in accordance with the Service Agreement.
3.
Term. This SLA shall be in effect whenever and for as long as the Client uses Catalyst.
3.
Service Commitment
Catalyst Service Level Agreement
3.1 DataFinch will use commercially reasonable efforts to make Catalyst available with an Annual Uptime Percentage of at least 99.90% during the Service Year. 3.2 In the event DataFinch does not meet the Annual Uptime Percentage commitment, Client will be eligible to receive a Service Credit. 4.
Eligibility and Calculation of Service Credits 4.1 If the Annual Uptime Percentage for Client drops below 99.90% for the Service Year, Client is eligible to receive a Service Credit equal to 10% of Client’s invoice for the Eligible Credit Period. 4.2 To file a claim, a Client does not have to have wait 365 days from the day the service was initiated or 365 days from any previous successful claims. A Client can file a claim any time Annual Uptime Percentage over the trailing 365 days drops below 99.90%. 4.3 DataFinch will apply any Service Credits only against FUTURE payments otherwise due from Client; provided that, DataFinch may issue the Service Credit to the credit card that was used to pay for service for the billing cycle in which the error occurred. 4.4 Service Credits shall not entitle Client to any refund or other payment from DataFinch. 4.5 A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than $1.00. 4.6 Service Credits may not be transferred or applied to any other account. 4.7 Unless otherwise provided in the SLA, Client’s sole and exclusive remedy for any unavailability or non-performance of DataFinch or other failure by DataFinch to provide Catalyst is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of Client’s use of Catalyst.
5.
Credit Request and Payment Procedures 5.1 To receive a Service Credit, Client must submit a request via e-mail message to [email protected]. 5.2 The credit request must: (i) (ii) (iii)
Include Client’s username prefix in the subject of the e-mail message; Include, in the body of the e-mail, the dates and times of each incident of unavailability Be received by DataFinch within thirty (30) business days of the last
Catalyst Service Level Agreement reported incident in the SLA claim. 5.3 If the Annual Uptime Percentage of such request is confirmed by DataFinch and is less than 99.90% for the Service Year, then DataFinch will issue the Service Credit to Client within one (1) billing cycle following the month in which the request occurred. 5.4 Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. 6.
SLA Exclusions 6.1 The Service Commitment does not apply to any unavailability, suspension or termination of Catalyst, or any other DataFinch performance issues: (i)
(ii) (iii)
(iv) (v)
Caused by factors outside of DataFinch’s reasonable control, including any Force Majeure Event or Internet access or related problems beyond the demarcation point of DataFinch; That result from any actions or inactions of Client or any third party; That result from Client’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within DataFinch’s direct control); That result from failures of individual instances not attributable to Donwtime; or Arising from DataFinch’s suspension and termination of Client’s right to use Catalyst in accordance with the Service Agreement.
6.2 If availability is impacted by factors other than those explicitly listed in this SLA, DataFinch may issue a Service Credit considering such factors in DataFinch’s sole discretion. 7.
General Provisions 7.1 Damages. IN NO EVENT SHALL DATAFINCH BE LIABLE TO THE CLIENT FOR PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS SLA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2 Entire Agreement. This SLA represents the entire agreement between the parties regarding the subject matter hereof. 7.2.1
This SLA supersedes in all respects any and all prior oral or written negotiations, discussions, commitments, representations, agreements and
Catalyst Service Level Agreement other understandings between the parties with respect to the subject matter of this SLA, and all such prior understandings are merged herein. 7.2.1
This SLA cannot be modified or terminated, nor may any of its provisions be waived, except as specifically provided in this SLA or by a written instrument signed by the party(s) against which enforcement is sought.
7.3 Amendment. This SLA may only be amended if such amendment is in writing and signed by both DataFinch and Client. 7.4 Severability. The invalidity or unenforceability of any provision of this SLA shall not affect the validity or enforceability of any other provisions of this SLA. 7.5 Non-Waiver. The waiver, express or implied, by either of the parties of any right or any failure to perform or breach by the other party, shall not constitute or be deemed as a waiver of any other right or any other failure to perform or breach by the other party, whether of a similar or dissimilar nature. 7.6 Captions. Headings and titles contained in this SLA have been inserted for reference purposes only and shall not be considered part of this SLA in construing this SLA. 7.7 Construction. The language in all parts of this SLA shall be in all cases construed according to its fair meaning, and not strictly for or against any party. 7.8 Governing Law. This SLA is governed by the laws of the State of Georgia without giving effect to Georgia's conflict of laws principles. The parties consent to the jurisdiction of the courts of the State of Georgia and the United States District Court located in Georgia for any dispute arising out of a breach of this SLA.
