The following are definitions of capitalized words used in this Service Level Agreement (“SLA”) and any capitalized words or phrases not otherwise defined herein shall have the same meaning as in the Software Subscription Agreement (“SSA”):
“Availability” means, with respect to a particular Subscription, the periods when the Customer, which for the sole purposes of the SLA shall include Consultant of Customer, can access all material portions of such Subscription outside of (a) Scheduled Maintenance or Special Maintenance periods, or (b) any other periods in with Third Party Issues are present. Without limiting the generality of the foregoing, Hive9 is not responsible for, and the Subscription is still considered Available, in the event of (a) inability of Customer to use the Subscription caused by Customer’s service provider’s failure to provide adequate computing facilities or equipment (hardware or software), internet connectivity; (b) inadequate training of Customer’s personnel with respect to use of the Subscription or issues with password authorization that are not responsibility of Hive9; (c) suspensions of Customer’s Subscription as permitted under the AUP or SSA; (d) Customer’s breach of a term or condition of any Order Form, the SSA or the AUP causing the unavailability; or (e) events of Force Majeure as defined in the SSA.
“Business Hours” means 8:00 a.m. to 6:00 p.m. (US Central Time), Monday through Friday.
“Calendar Month” means, for each Subscription, the monthly time period beginning at 12:00 AM US Central Time on the first day of the calendar month following the Activation Date during the Term and ending at 11:59 PM US Central Time on the last day of each such calendar month.
“Scheduled Maintenance” means a period during which Hive9 performs maintenance activities of the Subscription in accordance with Section 3 herein, during which availability of all or part of the Subscription is suspended. Scheduled Maintenance includes, without limitation, database index rebuilding, hardware upgrades, software upgrades, and network upgrades, as applicable.
“Special Maintenance” means a period during which Hive9 may suspend availability of the Subscription, in whole or in part, in order to address a Severity 1 Error.
“Severity 1 Error” means a security or other performance issue which may impact one or more Hive9 customer’s use of or access to the Subscription and ultimately may impact the availability of the Subscription.
Subscription Availability - General. Hive9’s goal is to provide Subscription Availability twenty-four hours per day, seven (7) days per week (referred to as “24x7 Availability”) EXCEPT during times of Scheduled Maintenance and Special Maintenance as set forth in Section 3 herein (“Subscription Availability Goal”). However, the parties recognize that 24x7 Subscription Availability is only a GOAL, and Hive9 cannot represent or guarantee that such goal can be achieved. These response time goals apply only to public production servers (i.e. web servers, application servers, and database servers).
Subscription Availability Level Goal. Hive9 will use commercially reasonable efforts to achieve the target Subscription Availability Goal (as defined under Section 2.1) of 99.5% in any Calendar Month.
Subscription Availability Reporting. Upon Customer’s written request and to the extent available, Hive9 shall provide prior months Subscription Availability Report via e-mail to the Customer.
Third Party Issues. Hive9 is not responsible for limitations or inability to use the Subscription by Customer, which are the result of failures or defects in services or equipment which are not provided by Hive9 (“Third Party Issues”). In the event of Third Party Issues, the Subscription is considered still Available under this SLA.
Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Hive9 DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM Hive9’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH Hive9 WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, Hive9 CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, Hive9 DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
Hive9 will use commercially reasonable efforts to conduct Scheduled Maintenance and Special Maintenance afterhours or other times that Hive9 determines in its reasonable discretion are not critical use periods for the majority of its customers. To this effect, Hive9 will use commercially reasonable efforts to notify Customer by email in advance of any Scheduled Maintenance which will require suspension of all or the majority of the Subscription for periods longer than sixty (60) consecutive minutes. In the event of Special Maintenance, Hive9 will use all reasonable efforts during Business Hours to (a) provide as much notice as is reasonably practical given the nature of the issue, (b) take action in good faith and with due regard for the nature of the Severity 1 Error. If Customer feels a Severity 1 Error is not being properly addressed, Customer may request escalation to the Support manager.