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.

Services Availability Credit
Uptime of 99% - 100% No Credit
Uptime of 98.0% - 99% 1%
Uptime of 97.0% - 98% 2%
Uptime of 96.0% - 97% 5%
Less than 96% 10%

Customer’s right to receive credit(s) (“Service Credits”) will be Customer’s exclusive remedy for Phoenix’s failure to satisfy this Service Level Agreement. Remedies will not accrue (i.e., no Service Credits will be issued, and an outage will not be considered unavailability for purposes of this Service Level Agreement) if Customer is not current in its payment obligations either when the outage occurs or when the credit would otherwise be issued. To receive Service Credits, Customer must submit a written request, within fifteen (15) days after the end of the month in which the Services was unavailable, or Customer’s right to receive Service Credits with respect to such unavailability will be waived. Where a force majeure event prevents full Availability for more than twenty (20) consecutive days in any six (6) month period, Customer’s sole remedy is to terminate the Agreement on thirty (30) day’s written notice to Phoenix. In such case, neither Party will be liable for penalties or damages arising out of a failure to perform under this Schedule.

Standard Customer Support: Customer support for the Software and Services can be reached at support@firmguard.com and is generally available from 5:00 a.m. pacific time to 5:00 p.m. pacific time Monday-Friday, excluding federal holidays, for all support requests. Response times will be dependent upon Customer providing sufficient detail to correct the reported issue (“Sufficient Detail”) as determined by Phoenix. Once that level of detail is obtained, resolution will commence within 12 hours for Critical Priority requests and 24 Hours for High Priority requests. Business Hours for this section shall mean 9:00 a.m. pacific time to 5:00 p.m. pacific time. Severity level shall be determined by Phoenix in its absolute discretion after receipt of Sufficient Detail. Phoenix has structured a response plan to address such requests in an efficient and timely manner, addressing the most critical issues first. Cases will be opened upon receipt of request or identification of issue, and incidents will be routed and addressed according to the following:

Severity Level Error State Description Target Resolution after collection of Sufficient Detail
1 – Critical Priority Renders the Services inoperative, or causes to fail catastrophically 8 Business Hours
2 – High Priority Affects the operation the Services and materially degrades Customer’s use thereof 12 Business hours
3 – Medium Priority Affects the operation of the Services but does not materially degrade Customer’s use thereof --
4 – Low Priority Causes only a minor impact on the operation of the Services --

Premium Customer Support: If a Customer has engaged Phoenix for Premium Customer Support, in addition to the Standard Customer Support Level provided under the Service Level Agreement, customer shall be entitled to Premium Customer Support under the terms of their Premium Customer Support Agreement.