For purposes of this Service Level Agreement, the following terms shall have the following meanings
"At Risk Amount" means five percent (5%) of the Monthly Fee.
"Available" means Customer’s users are able to access and use the Platform Services.
"Downtime" means any period during which the Platform Services are not Available.
"Downtime Exclusions" mean, collectively, (i) Scheduled Maintenance, (ii) Emergency Maintenance,
(iii) Customer Software-related issues including crashes, (iv) any downtime on servers where Customer
has been given direct Backend Access (as defined in the Maintenance and
Technical Support Terms and Conditions , (v) Customer’s Internet connection or firewall/network
issues, (vi) outages elsewhere on the Internet that hinder Customer’s access to the Platform Services,
(vii) domain name or other third-party services issues outside the direct control of BAO Systems
(including propagation delays), (viii) acts or omissions of Customer (or acts or omissions of others
engaged or authorized by Customer), including negligence, willful misconduct or use of the Platform
Services in breach of this Agreement, (ix) unavailability, interruption or delay of telecommunication
services of a third party, and (x) force majeure events.
"Emergency Maintenance" means BAO Systems’ back-end (i) operating system patches, (ii) server
software patches, and (iii) critical bug fixes, in each case in connection with the Platform Services.
"Monthly Fees" means the pro-rata portion of Fees applicable to a particular calendar month that
are paid or payable by Customer to BAO Systems for the Platform Services.
2.1. Availability. BAO Systems shall make the Platform Services Available, as measured over the
course of each one-calendar month period, 99.9% of the time, excluding Downtime due to Downtime
Exclusions (the "Availability Requirement").
2.2. Back-end Maintenance. Except for Emergency Maintenance, BAO Systems shall provide at least
two (2) days’ advance notice to Customer prior to engaging in any back-end maintenance in connection
with the Platform Services that may reasonably be expected to result in Unavailability
2.3. Availability Credits. In the event BAO Systems fails to meet the Availability Requirement
during any one (1) month period, Customer’s sole and exclusive remedy shall be for BAO Systems to issue
to Customer credits against subsequent Fees payable by Customer to BAO Systems under this Agreement
("Availability Credits") equal to the At Risk Amount applicable to the calendar month in which the
Availability Credits are calculated. Availability Credits (if any) will be calculated on a monthly
basis. BAO Systems will apply any issued Availability Credits against amounts payable by Customer on the
subsequent invoices issued by BAO Systems under the Standard Terms and Conditions
for Platform as a Service and BAO Edge (On-Premises PaaS)..
2.4. Sole Remedy. Section 2.3 of this Schedule states the entire liability of BAO Systems and the
sole and exclusive remedy of Customer with respect to any failure to meet the Availability Requirement