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Service Level Agreement (SLA)

Providing consistent and highly available access to the Software Services is a high priority for Market Logic and it is the basis for its commitment in the form of this Service Level Agreement (“SLA”). Upon Acceptance of the deliverables under the applicable Order Form or Statement of Work, this SLA shall provide the sole and exclusive rights and remedies in the event of defective Software Services.

     1.   DEFINITIONS

    1. "Availability” is defined in Section 4.2 of this SLA.

    2. “Catastrophic Loss” means the complete loss of Market Logic infrastructure that operates services for the Subscriber.

    3. “Downtime” means the total number of minutes the productive version of the Software Service is not accessible to any Users. The calculation of Downtime excludes time that Users are unable to access the Services due to any of the following:

    1. - Disaster Recovery, max. 72 h per incident

    2. - Force Majeure Event

    3. - User’s own Internet service provider

    4. - Any systemic Internet failures

    5. - Any failure in the Subscriber’s IT systems that the Services are integrated with

    6. - User’s acts or omissions

    7. - Anything outside of the direct control of Market Logic

      “Force Majeure” Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks.

      “Incident” means an unplanned interruption to, or a degradation of the Services provided to the Subscriber.

      “Initial Response Time” means the time elapsed between initial report of an Incident by the Subscriber and the communication of an initial response to such report by Market Logic.

      "Maintenance Time” means the time period during which the Software Service may be interrupted by Market Logic each month in order to perform maintenance services. The Software Services may be interrupted by Market Logic for maintenance services:

    8. - without prior notice on weekends between Saturdays at 12:00 noon CET and 18:00 CET (“Standard Maintenance”);

    9. - upon no less than 5 days’ prior notice to Subscriber up to six weekends per calendar year only entirely consumed for exceptional necessary extended maintenance windows (e.g. infrastructure updates in coordination with Subcontractors), starting on Saturday 0:00 CET and ending latest on Sunday 22:00 CET (“Extended Maintenance”); and

      - without notice at any time in order to protect the integrity of the Services due to security issues, virus attacks, spam issues or other unforeseen circumstances (“Emergency Maintenance”).

    10. “Ongoing Response Time” means the maximum time interval elapsed between consecutive update communication provided by Market Logic on an ongoing Incident.

      “Recovery Point” means a full and consistent backup of all of the Subscriber’s data stored in Market Logic’ systems.

      “Recovery Point Objective” means the maximum age of the most recent Recovery Point that can be restored in the event of Catastrophic Loss, as guaranteed by this SLA.

      “Recovery Time” means the actual time between a Catastrophic Loss and the restoration of the Recovery Point. The calculation of the Recovery Time excludes time that the Services are not Available to Users due to any one of the causes as listed under “Downtime” above.

      “Recovery Time Objective” means the maximum time required by Market Logic to restore the Recovery Point in the event of Catastrophic Loss, as guaranteed by this SLA.

      “Corrective Action Response Time” means the time elapsed between initial report of an Incident by Subscriber and the communication of a qualified plan to resolution by Market Logic.

      “Service Credit” means a credit granted by Market Logic to the Subscriber as sole and exclusive remedy of violations of this SLA. Under all circumstances, the total amount of Service Credit granted for violations that occur in any one calendar month is limited to the total fees paid by the Subscriber for Services provided that month. Service Credits must be claimed within 6 weeks of receipt of the relevant SLA report and are redeemed by reducing future payments of the Subscriber to Market Logic for purchasing Services governed by the the applicable Order Form or Statement of Work. Market Logic is not obliged to pay out Service Credits to the Subscriber except if the applicable Order Form or Statement of Work is expiring before such Service Credit can be applied, then Market Logic shall, as requested by Subscriber, extend the subscription term by either (i) another month at the pro-rata amount paid for a month under the the applicable Order Form or Statement of Work, and apply such Service Credit to such month; or (ii) that portion of another month (e.g. 1 week) where the subscription fee for such portion of the month is fully covered by such Service Credit.

      "Software Services" means the Market Logic software features and functionalities that are licensed to the Subscriber by Marker Logic and made available to the Subscriber online via a dedicated Subscriber login link and/or other webpages designated by Market Logic, which features and functionalities are specified in the applicable Order Form or Statement of Work.

      "Total Monthly Minutes” means the number of days in the month multiplied by 1,440 minutes per day.

      "Target Availability” means the minimum fraction of time per calendar month that Services are Available, as guaranteed by this SLA.

      "Users" means individuals who are authorized by the Subscriber to use the Software Services and who have been supplied user identifications and passwords by the Subscriber (or by Market Logic on behalf of the Subscriber and at the Subscriber’s request). Users may include, but are not limited to, the Subscriber’s employees, consultants, contractors and agents, and third parties with whom the Subscriber transacts business.

      “Working Day” means Monday through Friday, excluding public holidays in Germany.

      “Working Hour” means an hour elapsed time between 8 a.m. CET and 8 p.m. CET on each Working Day.

    2.   USER RESPONSIBILITY – MINIMUM REQUIREMENTS

            The currently required configuration that each and every User must have to access the Services include:

    1.   a.  an Internet connection with adequate bandwidth, and
    2.   b.   common and up-to-date Internet Browser
  2. 3.   TERM

            This SLA shall become applicable immediately upon Acceptance of the Services by Subscriber.

  3. 4.   AVAILABILITY SERVICE LEVELS
    1. 4.1.   Maximum Service Level
      The Target Availability is 99.5% per calendar month.
    2. 4.2.   Measurement
      Market Logic uses a proprietary system to measure whether the Services are Available on a minute-by-minute basis. Subscriber agrees that this system will be the sole basis for resolution of any dispute that may arise between the Subscriber and Market Logic regarding the non-Availability of the Services.
      Availability is calculated per calendar month, based on the following formula:
    4. 4.3.   Remedy
      If the Availability of the Services for a calendar month fails to achieve the Target Availability, a Service Credit worth 2% of the monthly license fees will be issued to Subscriber for each percentage point below the Target Availability as the sole and exclusive remedy for the violation of this SLA.
  4. 5.   INCIDENT SERVICE LEVELS
    1. 5.1.   Maximum Service Level
      A priority is assigned to each incident based on the nature of the issue:
    2. Incident Severity

      Qualification
      S1 Outage of service, or unavailability of an application. The issue severely impacts the Subscriber’s course of business and urgent, business critical tasks cannot be performed
      S2 Loss of core functionality, resulting in the issue significantly impacting the Subscriber's course of business and necessary tasks cannot be performed
      S3 Loss of convenience functionalities, not resulting in the issue significantly impacting the Subscriber's course of business
      S4 All other issue

      Subscriber acknowledges that not all S4 incidents will require a workaround. Market Logic may, at its reasonable discretion, respond to a S4 incident by making the support incident a feature request.

      Depending on the severity of an Incident, the following service levels apply:

    3. Priority Initial Response  Time Corrective Action  Response Time Ongoing  Response Time
      S1 4 working hours 6 working hours 4 working hours
      S2 4 working hours 2 working days 2 working days
      S3 2 working days - -
      S4 2 working days - -
      5.2.   During an S1 or S2 Incident, Market Logic will use commercially reasonable efforts to provide Subscriber with the expected resolution time (i.e. when the Corrective Action plan will be implemented) for such Incident, and shall keep Subscriber reasonably informed of any changes to such expected resolution time.
    4. 5.3.   Measurement
      Market Logic uses a proprietary system to track Incidents from initial reporting to resolution. The Subscriber agrees that this system will be the sole basis for resolution of any dispute that may arise between the Subscriber and Market Logic regarding this SLA.
    5. 5.4.   Reporting
      Market Logic provides quarterly reports on reported Incidents and the respective response times and Availability to the Subscriber, delivered via e-mail within 15 days of the end of the month to a person designated by the Subscriber. The report will be provided in Microsoft Excel format.
    6. 5.5.   Remedy
      If either the Initial Response Time or the Corrective Action Response Time (if applicable) for an Incident exceed the guaranteed response time, a Service Credit will be issued to the Subscriber as the sole and exclusive remedy for the violation of this SLA. The Service Credit is calculated as a fraction of the license fees paid by the Subscriber for the calendar month in which the Incident has been reported, as set forth in the table below.
    7. Severity Level Credit Amount of Monthly License Fee
      S1 3 % for a violation of the warranted Initial Response Time or Corrective Action Response Time
      S2 1 % for a violation of the warranted Initial Response Time or Corrective Action Response Time
      S3 0,25 % for a violation of the warranted Initial Response Time
  5. 6.   DISASTER RECOVERY SERVICE LEVELS
    1. 6.1.   Provided Service Level
      In the event of Catastrophic Loss of its infrastructure, Market Logic commits to a Recovery Point Objective of 24 hours and a Recovery Time Objective of 72 hours within the event of failure.
    2. 6.2.   Remedy
      The Recovery Time under this Section 6 shall be deemed as Downtime, solely for the purpose that during the Recovery Time of the first 72 hours per incident a Service Credit worth 0.5% of the monthly license fees for the Services will be issued to Subscriber for each percentage point below the Target Availability set forth in Section 4.1 as the sole and exclusive remedy for the violation of this SLA with respect to Availability. If the actual Recovery Time after Catastrophic loss exceeds the target level, the total Recovery Time will be regarded as missed Availability commitment and remedied accordingly per Section 4.3. herein instead.