The following are definitions of capitalized words used in this Service Level Agreement (“SLA”) and any capitalized words or phrases not otherwise defined herein shall have the same meaning as in the Software Subscription Agreement (“SSA”):
“Availability” means, with respect to a particular Subscription, the periods when the Customer, which for the sole purposes of the SLA shall include Consultant of Customer, can access all material portions of such Subscription outside of (a) Scheduled Maintenance or Special Maintenance periods, or (b) any other periods in with Third Party Issues are present. Without limiting the generality of the foregoing, Nurture Boss is not responsible for, and the Subscription is still considered Available, in the event of (a) inability of Customer to use the Subscription caused by Customer’s service provider’s failure to provide adequate computing facilities or equipment (hardware or software), internet connectivity; (b) inadequate training of Customer’s personnel with respect to use of the Subscription or issues with password authorization that are not responsibility of Nurture Boss; (c) suspensions of Customer’s Subscription as permitted under the AUP or SSA; (d) Customer’s breach of a term or condition of any Sales Order, the SSA or the AUP causing the unavailability; or (e) events of Force Majeure as defined in the SSA.
“Business Hours” means 9:00 a.m. to 5:00 p.m. (US Pacific Time), Monday through Friday.
“Calendar Month” means, for each Subscription, the monthly time period beginning at 12:00 AM US Pacific Time on the first day of the calendar month following the Activation Date during the Term and ending at 11:59 PM US Pacific Time on the last day of each such calendar month.
“Scheduled Maintenance” means a period during which Nurture Boss performs maintenance activities of the Subscription in accordance with Section 3 herein, during which availability of all or part of the Subscription is suspended. Scheduled Maintenance includes, without limitation, database upgrades, hardware upgrades, software upgrades, and network upgrades, as applicable.
“Special Maintenance” means a period during which Nurture Boss may suspend availability of the Subscription, in whole or in part, in order to address a Priority 1 Error.
“Priority 1 Error” means a security or other performance issue which may impact one or more Nurture Boss customer’s use of or access to the Subscription and ultimately may impact the availability of the Subscription.
Subscription Availability – General. Nurture Boss’s goal is to provide Subscription Availability twenty-four hours per day, seven (7) days per week (referred to as “24×7 Availability”) EXCEPT during times of Scheduled Maintenance and Special Maintenance as set forth in Section 3 herein (“Subscription Availability Goal”). However, the parties recognize that 24×7 Subscription Availability is only a GOAL, and Nurture Boss cannot represent or guarantee that such goal can be achieved. These response time goals apply only to public production servers (i.e. web servers, application servers, and database servers).
Subscription Availability Level Goal. Nurture will use commercially reasonable efforts to achieve the target Subscription Availability Goal (as defined under Section 2.1) of 99.5% in any Calendar Month.
Subscription Availability Reporting. Upon Customer’s written request and to the extent available, Nurture Boss shall provide prior months Subscription Availability Report via e-mail to the Customer.
Third Party Issues. Nurture Boss is not responsible for limitations or inability to use the Subscription by Customer, which are the result of failures or defects in services or equipment which are not provided by Nurture Boss (“Third Party Issues”). In the event of Third Party Issues, the Subscription is considered still Available under this SLA.
Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Nurture Boss DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM Nurture Boss’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH Nurture Boss WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, Nurture Boss CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, Nurture Boss DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
Nurture Boss will use commercially reasonable efforts to conduct Scheduled Maintenance and Special Maintenance after-hours or other times that Nurture Boss determines in its reasonable discretion are not critical use periods for the majority of its customers. To this effect, Nurture Boss will use commercially reasonable efforts to notify Customer by email in advance of any Scheduled Maintenance which will require suspension of all or the majority of the Subscription for periods longer than sixty (60) consecutive minutes. In the event of Special Maintenance, Nurture Boss will use all reasonable efforts during Business Hours to (a) provide as much notice as is reasonably practical given the nature of the issue, (b) take action in good faith and with due regard for the nature of the Priority 1 Error. If Customer feels a Priority 1 Error is not being properly addressed, Customer may request escalation to Nurture Boss.