Yodeck Service Level Agreement

This Service Level Agreement (“SLA”) is entered into by the respective Flipnode entity (“Supplier”) and you (“Customer”) pursuant to the Software as a Service Terms and Conditions available at www.yodeck.com/terms-of-service or other Software as a Service Terms and Conditions entered into by the parties (the “Customer Agreement”) and governs the Service Levels of the Yodeck Services during Customer’s Subscription. Capitalized terms not defined below have the meanings ascribed to them in the Customer Agreement. The version of this SLA that is current at the commencement or renewal of the term of your Subscription will apply.

Definitions

“Authorized Contact” means the individual who is the administrator of your Yodeck account.

“Applicable Period” means each full calendar year during the term of the Subscription measured from 12:00 a.m. Eastern US time on the first day of the year through 11:59 p.m. Eastern US time on the last day of the year.

“Applicable Monthly Service Fees” means the total fees actually paid by you for a Service that are applied to the month in which a Service Credit is owed.

“Claim” means a claim submitted by your Authorized Contact to Supplier pursuant to this SLA that a Service Level has not been met during an Applicable Monthly Period.

“Service Credit” is the percentage of the Applicable Monthly Service Fees credited to the Customer for a validated Claim. The Service Credit will be applied in the form of a credit or discount against a future invoice of Subscription Fees for the Yodeck Services.

“Service Level”, means the standard set forth below by which Supplier measures the level of service it provides in this SLA.

“Service Uptime” means the total availability of services during a calendar year.

“Downtime” means a period of time during which production system processing for the Yodeck Services has stopped and all of your users are unable to use all aspects of the Yodeck Services for which they have appropriate permissions. By way of clarification, “Service Uptime” is not counted and there is no “Downtime” if any user can use any aspect of the Yodeck Services for which they have appropriate permissions. Downtime does not include the Scheduled Downtime and the period of time when the Yodeck Services are not available as a result of:

• Scheduled System Downtime.
• Force Majeure, due to factors outside the Supplier’s reasonable control (for example, natural disasters such as fire, flood, earthquake, volcano eruptions, epidemics, war, acts of terrorism, riots, labor action, government action, orders or restrictions, or a network or device failure external to our data centers, including at your site or between your site and our data center)
• Problems with Customer or third-party applications, integrations, equipment or Data.
• Customer or third-party acts or omissions (including anyone gaining access to the Yodeck Services by means of your passwords or equipment).
• Customer’s unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from Customer’s failure to follow appropriate security practices.
• Customer’s failure to adhere to required system configurations and supported platforms for accessing the Yodeck Services, follow any policies for acceptable use, or Customer’s use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported).
• Preview, pre-release, beta or trial versions of a Service, feature, or software.
• Supplier compliance with any designs, specifications, or instructions provided by Customer or a third party on Customer’s behalf.
• Licenses reserved, but not paid for, at the time of the Incident.
• Failure of communication or telephone access service or other outside service, equipment, or software not the fault of Supplier.
• Any cause where such period of time lasts less than 5 minutes

“Eligible Customer” means an entity with an active, paid Subscription for the Yodeck Services, which has entitlement for use of the Yodeck Services at the time of submitting a Claim, and which is not in default of any material obligations, including payment obligations, under its contract with Supplier for the Yodeck Services.

“Incident” means a circumstance or set of circumstances taken together, resulting in a failure to meet a Service Level.

“Scheduled System Downtime” means periods of Downtime related to Scheduled Maintenance or system updates, such as but not limited to, when a release, patch or hot fix is applied. A fixed release cycle is arranged every six (6) weeks and each time Supplier shall issue a notice inside the application, 24 hours before a “Scheduled System Downtime” that is expected to last up to 45 minutes. For any “Scheduled System Downtime” that is expected to last over 45 minutes or is out of the usual release cycle, Supplier will publish notice or notify you at least five (5) days prior to the commencement of such Downtime

“Scheduled Maintenance” means maintenance that is announced at least one week in advance, and that does not exceed three hours in any calendar month.

“User Minutes” means the total number of minutes in a month, less all Scheduled Downtime, multiplied by the total number of users.

Service Credits

In order to be eligible to submit a Claim you must be an Eligible Customer and have logged a support ticket for each Incident with the customer support help desk for the applicable Yodeck Services. You must provide all necessary detailed information about the Incident, including the time you were first impacted by the Incident, and reasonably assist Supplier with the diagnosis and resolution of the Incident to the extent required. Such ticket must be logged within 24 hours of your first becoming aware that the Incident has impacted your use of the Services. Your Authorized Contact must submit your Claim for a Service Credit no later than 5 business days after the end of the Applicable Monthly Period which is the subject of the Claim. Your Authorized Contact must provide to Supplier all reasonable details regarding the Claim, including but not limited to, detailed descriptions of all relevant Incidents and the Service Level claimed not to have been met. Notwithstanding anything to the contrary herein, Customer’s failure to comply with the requirements of this paragraph will disqualify Customer from receiving a Service Credit in connection with the applicable Incident.

Supplier will measure internally total combined Downtime during each Applicable Monthly Period. Service Credits will be based on the duration of the Downtime measured from the time you report that you were first impacted by the Downtime. For each valid Claim, Supplier will apply the highest applicable Service Credit corresponding to the total combined availability during each Applicable Monthly Period, based on the table below. Supplier will not be liable for multiple Service Credits for the same Incident in the same Applicable Monthly Period.

Upon receiving your Claim, you will be notified within two weeks regarding the final decision on whether and how many Service Credits are awarded.

The total Service Credits awarded with respect to any Applicable Monthly Period shall not, under any circumstance, exceed 100 percent (100%) of the respective fee of the Applicable Monthly Period or one-twelfth (1/12th) of the annual charge paid by you to Supplier for the Services, as applicable.

Supplier will use its reasonable judgment to validate Claims based on information available in the records of Supplier, which will prevail in the event of a conflict with data in your records.

THE SERVICE CREDITS PROVIDED TO YOU IN ACCORDANCE WITH THIS SLA ARE YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM.

Availability during a Migration

If a cloud server migration is required because of cloud server host degradation or other technical reasons, we will notify you at least a week in advance of beginning the migration, unless we determine in our reasonable judgment, that we must begin the migration sooner to protect your data. Either way, we guaranty that the migration will be complete within six hours of the time that we begin the migration.

Service Level

“Service Level” is a percentage calculated as: (a) the total number of minutes in an Applicable Monthly Period minus (b) the total number of minutes of Downtime in an Applicable Monthly Period, divided by (c) the total number of minutes in an Applicable Monthly Period, with the resulting fraction expressed as a percentage:

Service Credit for “Basic” and “Premium” Pricing & Subscription Plans

Service Level during an Applicable Monthly Period	Service Credit (% of Monthly Subscription Fee for Applicable Monthly Period which is the subject of a Claim)
Higher than (>) 96.0%	–
Less than (<) 96.0%	100%

Service Credit for “Enterprise” Pricing & Subscription Plans

Service Level during an Applicable Monthly Period	Service Credits (% of Monthly Subscription Fee for Applicable Monthly Period which is the subject of a Claim)
Higher than (>) 99.9%	–
Higher than (>) 99.0%	10%
Higher than (>) 98.0%	50%
Less than (<) 98.0%	100%

Response Time

“Response Time” means the total hours during Business Hours for the first reply time, i.e., the time between the Customer submits a request to the Supplier and the first reply by the Supplier’s Tech support to the Customer. For tickets logged out of Business Ηours, response time commences at the beginning of the next Business Hours. Business Hours shall mean Monday to Friday and when and where EDT/EST is observed, from 3:00 am to 5:00 pm and when and where CET/CEST is observed, from 09:00 am to 11:00 pm.

Service Credit for Basic and Premium Pricing & Subscription Plans

Response Time per Incident during an Applicable Monthly Period	Service Credit (% of Monthly Subscription Fee for Applicable Monthly Period which is the subject of a Claim)
Less than (<) 72h	–
More that (>) 72h	10%

Service Credit for Enterprise Pricing & Subscription Plans

Response Time per Incident during an Applicable Monthly Period	Service Credit (% of Monthly Subscription Fee for Applicable Monthly Period which is the subject of a Claim)
Less than (<) 3h	–
Less than (<) 6h	5%
Less than (<) 12h	10%
More that (>) 12h	15%

Limitations and Exclusions

You are not entitled to a credit if you are not an Eligible Customer, or you are in breach of the Customer Agreement (including your payment obligations to Supplier). You are not entitled to a credit if Downtime would not have occurred but for your breach of the Customer Agreement or your misuse of the Yodeck Services.

Notwithstanding anything in this SLA to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of your fee for the respective monthly billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods.

This SLA does not apply to the following:

• Preview, pre-release, Beta, custom software, and trial versions of Yodeck
• Users with free access plan for the Yodeck Services.
• Non-production instances, including but not limited to test, disaster recovery, training, Q&A, or development.
• Claims made by Customer’s Authorized Users of the Yodeck services.
• Services, programs, enabling software or agents running on client systems or third-party-provided systems
• Customers that have breached any material obligations under the Customer Agreement, including, without limitation, breach of any payment obligations.