SAPPHIRE® CLOUD SERVICE LEVELS
These Service Levels apply to MiTek’s Sapphire® Cloud software services (“Cloud Services”) that are accessed and used pursuant to the MiTek® Sapphire Software Package License & Agreement and the Sapphire® Cloud Terms of Service.
1. Service Levels. Subject to these terms and conditions, MiTek will use commercially reasonable efforts to make the Cloud Services Available (as defined below) at least 98.7% of the time as measured over the course of each calendar month (based on 24-hour days for the number of days in the particular month) during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Goal”). As used herein: (a) “Service Level Failure” means a failure of the Cloud Services to meet the Availability Goal by more than one percentage point, e.g., starting at under 98.7%; and (b) “Available” means the Cloud Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Sapphire Cloud Terms of Service.
1.1 Exceptions. “Exceptions” to the Availability Goal are any time when the Cloud Services are not Available due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer’s or its Authorized User’s Internet connectivity; (c) Force Majeure Event; (d) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by MiTek pursuant to the License & Agreement; (e) Scheduled Downtime (as defined below); (f) disabling, suspension or termination of the Sapphire software pursuant to Section 4 of the License & Agreement (Security Measures); or (g) suspension of Cloud Services pursuant to Section 2 of the Sapphire Cloud Terms of Service.
1.2 Scheduled Downtime. MiTek will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Cloud Services between the after normal business hours in the Mountain Time zone; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Cloud Services (“Scheduled Downtime”). MiTek reserves the right to perform emergency maintenance without any prior notification should it be deemed necessary to protect and maintain the security and integrity of the Cloud Services.
2. Service Level Failures and Credits. Based on the table below, MiTek shall issue a credit to Customer in the amount of five percent (5%) of the monthly subscription fees for the Cloud Services due for the month in which the Service Level Failure occurred (each a “Service Credit”), subject to the following: (a) MiTek has no obligation to issue any Service Credit unless (i) Customer reports the Service Level Failure to MiTek immediately on becoming aware of it; and (ii) requests such Service Credit in writing within five (5) days of the Service Level Failure; and (b) in no event will a Service Level Credit for any Service Period exceed twenty-five percent (25%) of the total fees that would be payable for that Service Period if no Service Level Failure had occurred. Any Service Credit payable to Customer will be issued in the calendar month following the Service Period in which the Service Level Failure occurred.
Monthly Availability Credit Percentage
100% to >=99.7% 0%
<99.7% to >=98.7% 5%
<98.7% to >=97.7% 10%
<97.7% to >=96.7% 15%
<96.7% to >=95.7% 20%
Less than 95.7% 25%
In the event that the Cloud Services Availability falls below 95.7% for two consecutive months or three months in a rolling twelve month period, such failure shall constitute a material default by MiTek of the Sapphire Cloud Terms of Service entitling Customer to terminate. The issuance of Service Credits and termination of the Cloud Services sets forth MiTek’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
Last Revised: October 2020