Service Level Agreement
This Service Level Agreement (“SLA”) applies when referenced in a particular Service Order entered into by Afinety, Inc. (“Afinety”) and the Client identified in such Service Order (the “Covered Order”) and is governed by the MSA described in the Covered Order. Capitalized terms not otherwise defined herein shall have the meanings set forth in the MSA.
1. Technical Support.
1.1. Support Availability. Afinety will provide 24/7 on-call Support for Critical Priority Requests, as well as Covered Support and other Support described herein during Afinety’s standard business hours. Afinety’s Support may be accessed via requests submitted by any means identified by Afinety from time to time (each a “Support Request”), provided that after-hours Support Requests must be directed to the appropriate Critical Priority Request hotline in order for Client to receive a response prior to the next Business Day.
1.2. Covered Support. Unless otherwise agreed in the Covered Order or elsewhere in the Agreement, Afinety will provide Tier 2 Support to Client, as defined below, for Standard Applications and the Application Environment (“Covered Support”) as part of the Application Environment Services. Notwithstanding the foregoing, where a Tier 2 Support Request results in the need for Professional Services beyond standard technical Support, such Services will be provided on a time and materials basis at Afinety’s then-current hourly rates. Support Requests related to Limited Support Applications will be provided as a Supplemental Service. Upon onboarding and on Client’s request, Afinety will provide additional guidance on evaluating Support Requests to determine the applicable Support tier and coverage under the Covered Order.
1.3. Client Assistance. Client will provide all information reasonably requested by Afinety in connection with each Support Request.
2. Maintenance Services.
2.1. Standard Applications. As part of the Application Environment Services, Afinety will apply Third Party Providers’ patches, updates, and enhancements for Standard Applications, except that Major Upgrades will be provided as a Supplemental Service.
2.2. Limited Support Applications. As a Supplemental Service, Afinety will apply Third Party Providers’ patches, updates, and enhancements for Limited Support Applications, as well as Major Upgrades.
2.3. Non-Supported Applications. Afinety shall have no obligation to apply Third Party Providers’ patches, updates, and enhancements for Non-Supported Applications, and may remove Non-Supported Applications from the Application Environment. Notwithstanding the foregoing, from time to time Afinety may agree to provide specific Services in connection with Non-Supported Applications as described in Section 3.2 below.
2.4. Timing. The maintenance described in this Section 2 will be performed within the Maintenance Window, except that critical security patches (as well as any Security Enhancements) may be applied outside of a Maintenance Window if Afinety deems it necessary for security purposes. Client acknowledges that the Application Environment may be unavailable while maintenance is being performed.
3. Other Supplemental Services.
3.1. Restoration Requests. On Client’s request, Afinety shall restore data from data backups to the extent possible, provided that Client first uses reasonable efforts to restore data using any self-service restoration features offered by Afinety. Afinety shall use commercially reasonable efforts to restore data within the time frame requested by Client, subject to resource availability. Such restoration requests are considered requests for Supplemental Services hereunder.
3.2. Optional Support. Afinety may, but is not obligated to, provide Support of any kind for any Non-Supported Applications, or where the Support Request is the result of any of the following: (i) refusal to implement security patches or error corrections released by a Third Party Provider; (ii) failure to use the Services in accordance with the Agreement, Third Party Terms, or any other reasonable instructions provided by Afinety; (iii) failure or fault of any third party product, service, or vendor that is not part of Client’s Services, even if Afinety provides a supported integration for the same; (iv) alterations of the Application Environment by anyone other than Afinety (unless authorized by Afinety in writing); or (v) Support Requests that require detailed or specialized attention different in kind or amount from those provided to Afinety’s other clients using similar services. Any Support Afinety elects to provide under this Section 3.2 shall be a Supplemental Service.
3.3. Non-Critical After Hours Support. Support Requests directed to the Critical Priority Requests hotline which are not deemed to be Critical Priority Requests included in Covered Support will be treated as Supplemental Services. Notwithstanding the foregoing, Afinety will provide verbal, email, or other notice of such designation prior to commencing the relevant after-hours Support Services.
3.4. Hourly Rates. Except for Critical Priority Requests included in Client’s Covered Support, Afinety’s hourly rate for days other than Business Days is two (2) times the hourly rate charged during Afinety’s business hours, and the hourly rate for Services performed on Business Days outside of Afinety’s normal business hours is one and one half (1 ½) times the hourly rate during business hours. For the avoidance of doubt, the after-hours rates are included as part of Afinety’s “then-current” hourly rates.
3.5. External Vendors. Client acknowledges and agrees that notwithstanding anything to the contrary contained in the Agreement, no third party, including any of Client’s vendors and service providers, shall be entitled to modify the Application Environment or otherwise be granted access to the Application Environment that exceeds the permissions granted to Client’s standard Users.
4. Change Orders.
Except as otherwise specified in this SLA or elsewhere in the Agreement, Afinety may, but need not, require a Change Order in connection with the provision of Supplemental Services. Unless otherwise agreed in writing, all Supplemental Services will be provided at Afinety’s then-current hourly rates, plus expenses.
5. Availability SLA.
5.1. Credits. If the Environment Availability is less than 99.5% for a calendar month, Client shall be entitled to a service credit equal to the Covered Downtime multiplied by the Covered Fees for such month (the “SLA Credit”).
5.2. “Covered Downtime” means 99.5% minus the Environment Availability, with “Environment Availability” calculated as follows:
(100 x Minutes in the Calendar Month – Minutes of Environment Unavailability for the Calendar)/ (Month Minutes in the Calendar Month)
5.3. “Environment Unavailability” means the period of time during which Client is unable to access the Application Environment, with each period of Application Unavailability measured from the time that Client submits a support ticket or email describing the unavailability until Client is once again able to access the Application Environment, excluding any Excused Unavailability during such period.
5.4. “Excused Unavailability” means periods of time during which Client is unable to access the Application Environment due to (i) maintenance, improvements, or other work which occurs during a Maintenance Window, (ii) permitted critical or emergency maintenance as described above, (iii) unavailability due to a failure of the Cloud Infrastructure (unless the failure is due to Afinety’s configuration error), (iv) Application configuration, or errors or defects inherent in any Application or other Third Party Offering, or (v) Client’s unilateral changes to the Application Environment or Client’s other breach of the Agreement.
5.5. Application Availability. For the avoidance of doubt, the availability SLA described in this Section 5 (“Availability SLA”) is applicable solely to the Application Environment, and not to the availability of any Third Party Offering.
5.6. Additional SLA Credits. In the event that Client experiences seventy-two (72) consecutive hours of Environment Unavailability and/or Excused Unavailability in three (3) consecutive calendar months (“Significant Unavailability”), the SLA Credit will be doubled for the period of Significant Unavailability.
6. Credit Eligibility.
SLA Credits may be applied solely to Fees invoiced by Afinety for future calendar months and will not be refunded to Client under any circumstances. If Client has a past-due balance or is disputing all or a portion of the Fees (unless such dispute is resolved in favor of Client pursuant to the terms of the MSA), or if Client is otherwise in breach of the Agreement, no SLA Credit will be owed. To receive an SLA Credit, Client must notify Afinety of its credit request via email within thirty (30) days of the last day of the calendar month to which such request applies. The request must include details of the instance(s) of Environment Unavailability giving rise to such request, including the date and time of the applicable support ticket(s) or email(s) submitted pursuant to Section 5.3 above. Upon Afinety’s request, Client must also provide Afinety with any additional information it may require to verify such failure(s). The SLA Credits are Client’s sole and exclusive remedy, and Afinety’s sole liability, with respect to Afinety’s performance of the Application Environment Services described in the applicable Covered Order (whether or not particular Services are covered by the Availability SLA).
7. No Additional Warranties; Conflict and Limit of Liability.
Afinety makes no representations or warranties with respect to its Support Services or any other portion of the Services, except as expressly set forth herein or elsewhere in the Agreement. If there is a conflict between this SLA and any other portion of the Agreement, the order of precedence shall be determined in accordance with the terms of the MSA. For the avoidance of doubt, all SLA Credits are subject to all limitations of liability under the MSA, and subject to the aggregate limitation for the Agreement.
8.1. “Covered Fees” means sixty percent (60%) of the monthly recurring Fee payable to Afinety, excluding, for the avoidance of doubt, any applicable Taxes and any time and materials Fees or other one-time Fees.
8.2. “Covered Support” means Level 2 Support for Standard Applications and the Application Environment, as further described below, but excludes User additions and deletions, Support for mobile device applications, Support for Limited Support Applications and Non-Supported Applications, and Major Upgrades. Covered Support does not include Level 1 Support for Standard Applications unless expressly included in the applicable Covered Order.
8.3. “Critical Priority Request” means a Support Request related to an interruption making a critical functionality (including access to Client Data) inaccessible to all Users, causing a severe impact on Client’s day-to-day operations, where no workaround is available.
8.4. “End of Life Application” or “EOL Application” means an Application or other Third Party Offering (a) which is three (3) or more years old or (b) for which the Third Party Provider has stopped providing updates and/or support, whichever comes first. The age of an Application version is measured with respect to the major version release denoted by the Third Party Provider in the first portion of the version identification, whether a number, letter, or otherwise (a “Major Version Release”). If a Third Party Provider uses a different identification method, Afinety shall determine whether a version release constitutes a Major Version Release. Unless otherwise agreed in writing, all Standard Applications and Limited Support Applications automatically become Non-Supported Applications upon the earlier of (x) reaching End of Life or (y) where Afinety is no longer able to host such Application under applicable Third Party Terms.
8.5. “Maintenance Window” means 11:00 PM Central – 6:00 AM Central, Monday through Sunday, and such other windows for specific maintenance work that may be agreed (including via email) by Client and Afinety.
8.6. “Major Upgrade” means (i) an upgrade in connection with a Major Version Release, (ii) an upgrade or enhancement requested by Client that Afinety reasonably deems to require material effort, or a material change to the Application Environment, or (iii) a Security Enhancement as defined in the MSA. All Major Upgrades are Supplemental Services subject to Afinety’s then-current hourly rates.
8.7. “Tier 1 Support” means direct Support Requests from Client’s Users, outside of Client’s technical team.
8.8. “Tier 2 Support” includes direct Support Requests from Client’s technical team, as well as Tier 1 Support Requests from Client’s Users which remain unresolved after attempts to address such requests, which do not require the performance of Professional Services.