This Service Level Agreement (“SLA”) applies when referenced in a particular Service Order entered into by Netgain Technology, LLC, (“Netgain”) 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.
1.1. 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 (each an “SLA Credit”).
1.2. “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
1.3. “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.
1.4. “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) unavailability due to a failure of the Cloud Infrastructure (unless the failure is due to Netgain’s configuration error), (iii) Application configuration, or errors or defects inherent in any Application or other Third Party Offering, or (iv) Client’s unilateral changes to the Application Environment or Client’s other breach of the Agreement.
SLA Credits may be applied solely to Fees invoiced by Netgain 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 Netgain 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 1.3 above. Upon Netgain’s request, Client must also provide Netgain with any additional information it may reasonably require to verify such failure(s). The SLA Credits are Client’s sole and exclusive remedy, and Netgain’s sole liability, with respect to Netgain’s performance of the Application Environment Services described in the applicable Covered Order (whether or not particular Services are covered under this SLA).
Netgain makes no representations or warranties with respect to its 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 are included in the aggregate limitation under the Agreement.
For purposes of this SLA, “Covered Fees” means sixty percent (60%) of the monthly recurring Fee payable to Netgain, excluding, for the avoidance of doubt, any applicable Taxes, Fees for Professional and Supplemental Services and any other time and materials or non-recurring Fees.