Service Level Agreement Hosting
Last Updated: May 1, 2021
This Service Level Agreement (“SLA”) applies to CodeisCode Marketing & Consulting LLC (“CodeisCode”, “we”, or “us” or “Provider”) customers with active Platform Maintenance Service and Custom-tailored High-Performance Hosting subscriptions to CodeisCode’s Services (each, a “you”, “Customer”).
This SLA, together with the Terms of Service Agreement, constitutes a separate contract that will be effective as of the date the customer accepts the TOS and shall continue in full force and effect until the completion or termination of the Services.
If any terms of this SLA conflict with the Terms of the Service Agreement, the terms of the Service Agreement shall take precedence. All terms as stated in the Services Agreement, not in conflict with this SLA are incorporated herein as though fully stated.
This SLA amends the Terms of Service Agreement between CodeisCode and you the Customer and addresses the uptime guarantees in relation to the Services we provide to you and your remedies for our failure to meet such guarantees. The remedies contained in this SLA are your sole and exclusive remedies for any issues addressed herein. We may update this SLA from time to time at our sole discretion.
For its Customers, CodeisCode will provide the following service levels for the Services as set forth below.
Except as provided in this SLA, capitalized terms shall have the meanings set forth in the body of the Agreement. The following terms, when used in this SLA, shall have the following meanings:
2.1 “Server” shall mean the server(s) on which the Hosting Services will be hosted.
2.2 “Services” has the meaning described in the underlying Agreement.
3. Service Availability
CodeisCode will use commercially reasonable efforts to make the Services available at least 99.5% of the time in a Reporting Period (“Service Availability Commitment”), excluding any Excused Downtime for Maintenance Time and Excluded Time.
In a given calendar month, we calculate “Service Availability” as follows:
Service Availability = | (total minutes Services are available) x 100 ÷ (total minutes in the month) – (Excused Downtime)
3.1 Excused Downtime
“Excused Downtime” means the length of time the Services are unavailable due to:
a) Scheduled Maintenance;
b) Emergency Maintenance;
c) Beta Services;
d) Force Majeure events; and
e) the actions or omissions of you, your Authorized Users, or any third-party acting on your behalf or at your direction, including any unauthorized use of the Services, breach of the Agreement or Acceptable Use Policy, or any use or configuration of the Services that exceeds CodeisCode’s recommendations or advertised limits.
3.2 Scheduled Maintenance
“Scheduled Maintenance” includes any maintenance performed during the following windows or for which we provide reasonable notice or coordination with you in advance of the maintenance.
3.3 Emergency Maintenance
“Emergency Maintenance” means any maintenance performed outside the Scheduled Maintenance windows without advance notice where such maintenance is reasonably and urgently required to protect the integrity, availability, or security of any online systems.
3.4 Maintenance Time
“Maintenance Time” means the time (in minutes) for (i) maintenance periods scheduled with advance notice to Customer to perform system maintenance, backup, and system updates and upgrades for the Services and (ii) emergency unscheduled maintenance. Emergency maintenance will be undertaken when, in CodeisCode’s sole reasonable discretion, it is deemed necessary to prevent prolonged loss of Service Availability, harm to CodeisCode’s systems, or other material adverse consequences. CodeisCode will endeavor to provide advance notice of such maintenance to the Customer when practicable, depending on the circumstances.
3.5 Excluded Time
“Excluded Time” means any time (in minutes) the Services are unavailable to Customer due to: (i) any event or circumstance beyond the reasonable control of CodeisCode, including natural catastrophes, governmental acts, war, terrorism, labor strikes or difficulties, interruptions or failure of the Internet, failures of third-party network connections, or service outages of third-party service providers; (ii) Customer’s programming of or modifications to its APIs in a manner that affects its ability to interact or communicate with the Services; (iii) equipment, software, or other technology of Customer or a third party that are not within the primary control of CodeisCode; (iv) Customer’s use or attempted use of the Services in a manner not approved or authorized by CodeisCode, and/or (v) interruptions caused by the negligence, error, or omissions of Customer.
3.6 Reporting Time
“Reporting Period” means a calendar month.
3.7 Unscheduled Downtime
“Unscheduled Downtime” means total time in minutes of any unavailability of the services that occurs other than due to Maintenance Time or Excluded Time.
4. Service Credits for Service Availability
You are entitled to a credit of 5% of the applicable monthly Fees for each full hour of downtime in excess of the Service Availability targets. (For example, you will receive a 5% credit for between 1 and 60 minutes of downtime in excess of the Service Availability targets, a 10% credit for between 61 and 120 minutes, etc.) In order to receive a credit, you must contact Support within 10 business days of the event giving rise to the credit. The service credits will then be applied to reduce, on a dollar for dollar basis, the amount payable by the Customer for the following Reporting Period.
Credits are based on our monitoring, shall not exceed 100% of the applicable monthly Fees, may not be carried over or aggregated, are forfeited at the expiration or termination of the Agreement, and will not be paid or provided as a refund.
5. General Terms and Conditions
In consideration of the foregoing Recitals (which are incorporated herein) and the mutual covenants and agreements contained herein, the Parties hereto agree as follows:
5.1 Term and Termination
In the event this SLA begins on the same date as the Terms of Services Agreement, then the Term and Termination clauses in that Services Agreement shall control. In the event, this SLA begins at some time after the Effective Date of the Terms of Services Agreement the following shall apply.
5.2 Unless earlier terminated pursuant to this Section, this Agreement shall begin on the Execution Date and continue for three (3) years (the “Initial Term”), after which, this Agreement will auto-renew for additional one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”). Either party may terminate this Agreement by providing the non-terminating party no less than ninety (30) days prior written notice to a Renewal Period of its intent to not renew.
5.3 Either party may terminate the Underlying Agreement upon five days written notice to CodeisCode if the Service Availability falls below 98% in each of three consecutive Reporting Periods or four or more Reporting Periods in a six-month consecutive period. The Customer must exercise the termination right within 10 business days of the end of such a three-month or six-month period, as applicable. If the Customer exercises its right to terminate pursuant to this Section 5, the Customer will not be entitled to any service credits.
5.4 Notwithstanding anything to the contrary herein, in the event the Terms of Services Agreement is terminated for any reason, this SLA shall terminate simultaneously with that termination.
5.5 Termination for Non-Payment shall be in accordance with Section 10.5 of the Terms of Services Agreement.
5.6 Termination Assistance Services.
Upon the expiration of this Agreement or its termination by either Party for any reason, including the breach of this Agreement by the other Party, the rights of Customer shall in any and all events be provided as set forth in this Section (“Termination Assistance Services”).
Provider shall continue to perform the services under the Agreement, at performance standards and service levels in effect at the time of termination or expiration, as well as the transition assistance services, which services shall be provided as set forth in this Section.
Provider shall provide Customer with all of the services and all of the transition services as provided in this Section. The duty of Provider to provide such services shall be conditioned on Customer continuing to comply with its obligations under the Agreement, including payment of all fees, and is furthermore conditioned by the type of hosting services provided. Certain Custom-Tailored Hosting Environment Solutions Custom-Tailored Software Solutions and Specific Types of Platforms are excluded from Transition Services and can only be hosted on the Provider’s Hosting.
Provider shall have no right to withhold or limit its performance or any of such transition services on the basis of any alleged breach of this Agreement by Customer, other than a failure by Customer to timely pay the amounts due hereunder during the transition period or if the type of Platform, Custom Hosting Solution or Custom Software Solution is excluded from Transition Services.
Customer shall have the right to seek specific performance of this Section in any court of competent jurisdiction and Provider hereby waives any defense that damages are an adequate remedy. Compliance with this Section by either Party shall not constitute a waiver or estoppel with regard to any rights or remedies available to the Parties.
The provider will (i) meet with the Customer as soon as practicable after a notice of termination or notice of a decision to not extend this Agreement has been given, to discuss any potential modifications to the then most current Termination Transition Plan, if any, (ii) use all commercially reasonable efforts to assist Customer in effecting a transition of the services provided by Provider hereunder, in accordance with industry best practices, to Customer or another vendor chosen by Customer, and (iii) be compensated for all transition-related services and costs by payment by Customer in accordance with the following and 100% in advance: 2 hours 90 USD each.
The provider will provide transition services for 5 business days following the expiration or termination of this Agreement. The total period of transition support services shall not exceed 10 business days.
6. General Hosting Obligations
During the Term, Provider shall perform the following:
6.1 Operate the Hosting Services on a Server owned and maintained by Provider.
6.2 Allow access to the server over the Internet and provide secure and confidential storage of all information transmitted to and from the Server.
6.3 Supply hardware, security protocols, software, and communications support structure to facilitate connection to the Internet in accordance with the requirements set forth herein.
6.4 Maintain a backup server, at a geographically different site from where the Server is located, to ensure continuous service in the event of a disaster. (incl. in specific hosting plans only)
6.5 Review security notifications and alerts relevant to the hosting platform (e.g., Provider notifications of bugs, attacks, patches), and apply as appropriate to maintain a reasonably commercial effective level of defense.
7. Provider’s Changes and Upgrades
The provider may from time to time make material enhancements and changes to the Hosting Services. In the event of such enhancements or changes, (i) the new version of the Hosting Services will include at least the functionality, level or quality of Hosting Services that the Customer previously received and shall continue to comply with all the requirements of this SLA and (ii) Customer shall be provided, at least sixty (30) days in advance of any such changes, written notice. During the Term, the Customer shall receive access to all new versions, releases, updates, enhancements of the Hosting Services at no additional charge.
8. Sole Remedy
This Service Level Agreement sets forth the Client’s sole and exclusive remedy for CodeisCode’s failure to meet the Service Availability Commitment.
9. No Other Modification
Except as expressly provided herein, the Underlying Agreement remains unmodified in all respects and in full force and effect. This SLA shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any disputes arising out of this SLA shall be resolved in accordance with the terms of the Underlying Agreement. CodeisCode may amend this SLA from time to time at its sole discretion.
10. Price and Payments
10.1 Initial Term. The fees for the Initial Term are set forth in your SOW or as defined in your Custom Offer or as published on our website.
10.2 Fees During Renewal Terms. Provider’s fees and rates hereunder shall be fixed during the Initial Term. Thereafter, Provider may increase such fees and rates for a Renewal Term by providing notice to Customer at least sixty (30) days prior to the commencement of such Renewal Term. Any such increase shall not exceed ten percent (10%)] of the fees charged during the preceding term.
The provider will maintain and enforce safety and physical security procedures with respect to its access, use, and possession of Customer’s Confidential Information, including personal data, that are (a) at least equal to industry standards for such types of locations, and (b) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such information. Without limiting the generality of the foregoing.
11.1 The provider will take all reasonable measures to secure and defend its location and equipment against “hackers” and others who may seek, without authorization, to modify or access Provider systems or the information found therein.
11.2 The Provider will periodically test its systems for potential areas where security could be breached. The provider will immediately report to the Customer any breaches of security or unauthorized access to the Customer’s Confidential Information, including personal data, that Provider detects or becomes aware of. The provider will use diligent efforts to remedy such breach of security or unauthorized access in a timely manner and deliver to the Customer a root cause assessment and future incident mitigation plan with regard to any breach of security or unauthorized access affecting the Confidential Information, including personal data.
12. Disaster Recovery and Business Continuity
Provider shall maintain a Business Continuity and Disaster Recovery Plan for the Services (the “Plan”) and implement such plan in the event of any unplanned interruption of the Services. Provider shall actively test, review, and update the Plan on at least an annual basis using industry best practices as guidance.