Service Level Agreement

Availability Objective: Phoenix will provide 99% Availability (as defined below) for the Services within Phoenix’s Immediate Control. For purposes hereof, “Availability” or “Available” means the Services are available for access and use through Phoenix’s Internet connection.

“Immediate Control” includes Phoenix’s network and platform services which extends to, includes and terminates at the Internet Service Provider (“ISP”) circuit termination point on the router in Phoenix’s data center (i.e., public Internet connectivity).

Specifically excluded from the definition of “Immediate Control” are the following:

1. Equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer and Customer’s network services which allow the Customer to access the Services. 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.
2. Equipment, data, advertisements, materials, software, hardware, services and/or facilities provided by third party vendors or service providers of Customer.
3. Any failures or outages by third party cloud service providers on which the Services are operated or otherwise deployed.
4. Acts or omissions of Customers, its employees, contractors, agents or representatives, third party vendors or service providers of Customer or anyone gaining access to Phoenix’s network at the request of Customer.
5. Issues arising from bugs or other problems in the software, firmware or hardware of third parties.
6. Delays or failures due to circumstances beyond Phoenix’s reasonable control that could not be avoided by its exercise of due care.
7. Any outage, network unavailability or downtime outside the Phoenix data center.
   
   

Availability Calculation: Availability is based on a weekly 7-day x 24-hour calculation. The calculation will be as follows: ((a – b) / a) x 100, where “a” is the total number of hours in a given calendar month, and “b” is the total number of hours that service 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 a force majeure event or events which are outside Phoenix’s Immediate Control as defined above; (3) use of unapproved or modified hardware or software by or on behalf of Customer; (4) issues arising from misuse of the Services by Customer or its agents, customers or third party contractors; and/or (5) service interruption caused by Scheduled Maintenance as described below.

Scheduled Maintenance: Phoenix will provide Customer with advance notice, as feasible, via e-mail or in Software notification(s) of all scheduled maintenance activities.

Remedies: The remedies stated in this Section are the Customer’s sole and exclusive remedies and Phoenix’s sole and exclusive obligations for service interruption. In the event that Phoenix is unable to provide the Availability objective noted below in any given calendar month, Customer will receive a credit on their next monthly invoice equal to the corresponding percentage noted below of one (1) month’s subscription Fees for the Services (not including any implementation or other professional services related Fees) for the month in which the Availability objective was not obtained, which will not exceed 10% of such Fees due to Phoenix for that calendar month.