Support Services and Service Level Terms
This Schedule sets forth how CyGov will provide Support Services for the Saas Platform. The terms and conditions of this Support Services and Service Level Terms are in addition to the terms contained in the Partner/Reseller Agreement ("Agreement") and, in the event of any conflict or inconsistency between the Agreement and these terms, the terms of the Agreement shall govern. All capitalized terms not defined below shall have the meaning set forth in the Agreement.
New Releases. Provided that the Customer has promptly paid and remains current in the payment of all amounts due to CyGov under the Agreement, CyGov will provide Customer with all New Releases of the SaaS Platform specified in the CyGov Order after general commercial release at no additional cost to Customer, other than any applicable installation fees. Customer will fully cooperate to ensure that Customer is using the most current version of the SaaS Platform.
Error Notification. Customer will promptly notify CyGov of any verifiable and reproducible failure of the Saas Platform to materially conform to the specifications set forth in the applicable Documentation (an “Error”). For avoidance of doubt, an “Error” shall not include, and CyGov shall not be responsible for fixing or otherwise resolving, any failure that: (a) results from misuse or improper use of the Saas Platform; (b) does not materially affect the operation and use of the Saas Platform; (c) results from the modification or customization by Customer or any third party of the Saas Platform; or (d) results from a failure to promptly implement any relevant improvements or modifications to the Saas Platform provided to Customer by CyGov, including any New Releases. Should any fault be found not to be the responsibility of CyGov, Customer will accept an invoice payable on issue for the Support Services provided based on the number of hours spent plus all expenses (including all travel time to and from the location).
Support Call Priorities.
A. This Section 3 defines the priorities and the procedures for support calls relating
to the Support Services provided by CyGov. CyGov shall only be required to respond to support calls from the Customer or their designee in writing; provided that only persons who have been trained with respect to the SaaS Platform and are familiar and technically proficient with respect to both the SaaS Platform and with Customer's systems may be included on such list. Customer may update such list from time to time as necessary.
B. Procedure for Support Calls. Any failure of SaaS Platform to operate properly must be reported by the Customer to CyGov by email, telephone or other remote communications, and must also include Customer as either a recipient or "cc" on any written or electronic communications. Upon receipt of a report of failure, CyGov shall notify Customer of the failure and respond in accordance with the severity of the failure, as detailed in the table below. The severity level shall be determined by CyGov based on the description provided by the Customer, subject to mutual concurrence as requested by Customer, in accordance with the definitions set forth in column 2 of the table below. Once a problem can no longer be properly classified as Severity "0" or “1”, CyGov's Support Services relating to rectifying the problem will continue, but will only be performed during CyGov's regular business hours, which are from 9 a.m. to 4 p.m. EST Monday through Friday, excluding statutory holidays in the State of New York, USA, and 9 a.m. to 4 p.m. GMT Monday through Thursday.
* Except for Severity Levels 0 and 1 (for which work will commence on any day), with respect to problems for which CyGov is first notified outside of CyGov's normal business hours, the target time to address the issue shall be measured from the start of the next business day for CyGov.
C. Problem Correction. Upon receipt of a report of a problem from Customer authorized personnel, CyGov shall use commercially reasonable efforts to provide Customer with a permanent fix as soon as reasonably possible. In the case of Severity "0" and "1" problems, work shall commence and proceed regardless of normal business hours. Once a problem can no longer be properly classified as Severity "0" or "1", CyGov Support will continue, but will only be performed during CyGov's normal business hours. CyGov shall have no obligation to correct any errors or problems which CyGov cannot replicate.
D. CyGov shall be responsible, at no additional cost to Customer, for providing Customer with the following technical support for SaaS Platform:
Offering the Support of its Customer Service Help Desk from 9:00 a.m. to 4:00 p.m. EST from Monday to Friday, excluding statutory holidays in the USA; plus emergency coverage 24 hours per day, 7 days a week for Severity "0" and/or "1" problems;
Providing problem management support and following the escalation provisions set forth in this Support Schedule;
Using commercially reasonable efforts to achieve the service level targets set forth in this Support Schedule; provided that Customer's sole and exclusive remedy for CyGov's failure to meet such service level targets are those set forth in this Support Schedule alone.
4. Service Level Measurement Criteria and Targets.
A. System Support, Availability and Performance.
1. Description of Service
a. CyGov shall be responsible for:
Advising Customer operations to ensure 99.5% SaaS Platform availability; and
Meeting the service level targets set forth in in this Support Services Schedule; provided that Customer's sole and exclusive remedy for CyGov's failure to meet the service level targets set forth in this Schedule are solely those set forth in this Schedule.
b. Service Level Measurement Criteria and Targets.
B. SaaS Platform Maintenance
1. Description of Service
a. CyGov shall be responsible for the following in connection with the maintenance of SaaS Platform:
Updating SaaS Platform with all applicable enhancements and upgrades that CyGov makes generally available to any of its other subscribers of the SaaS Platform (excluding subscribers of the SaaS Platform in conjunction with other components or modules sublicensed from CyGov);
Maintaining the SaaS Platform by providing patch releases or upgrades as required to correct SaaS Platform bugs; and
Meeting the service level targets set forth herein; provided that Customer's sole and exclusive remedy for CyGov's failure to meet the service level targets are those set forth in this Support Services Schedule.
5. Effect of Non-Performance; Failure to Meet Performance Levels
A. Liquidated Damages. This Section describes the liquidated damages payable by CyGov to Customer for not meeting performance targets, and the process for calculating and imposing the amounts. The Parties acknowledge and agree that the determination of actual damages as a result of non-performance would be difficult to calculate, and accordingly, both agree that liquidated damages pursuant to the table below are a fair and reasonable approximation of the damages that Customer may incur by the failure of CyGov meet the its obligations in this Support Schedule and are Customer’s sole and exclusive remedy under this Support Schedule.
B. Damages for Performance Shortfalls.
The liquidated damages payable by CyGov due to not meeting the availability targets for SaaS Platform or the (the "Performance Damages") shall be determined annually. Availability shall be calculated in accordance with this Support Services Schedule. The amount of Performance Damages, if any, will be shown as an invoice credit against future Support Services Fee obligations of Customer. Money damages and invoice credits shall not be a remedy for any breach of Service levels.
2. For any calendar month, the Performance Damages amount shall be determined as follows:
The product of: (i) one-twelfth of the annual Support Services Fee paid by Customer for the calendar month in which the unavailability occurred, and (ii) the applicable percentage from the following table:
3. The remedies set forth herein shall be Customer's sole and exclusive remedies for any CyGov failure to meet any service level targets set forth in this Schedule.
A. Each Party hereto has the power and authority to make, execute, deliver and perform its obligations under this Support Schedule and all such action has been duly authorized by all necessary proceedings on its part, respectively.
B. This Support Schedule has been duly and validly executed and delivered by each Party and constitutes the valid and legal binding agreement of each Party enforceable in accordance with its terms.
6. Customer Assistance.
Customer represents and warrants:
(a) To use the SaaS Platform correctly and in accordance with CyGov’s operating instructions, general IT good practice and with suitable consumable supplies;
(b) To use the current release or version of the SaaS Platform made available to Customer and upload or upgrade the SaaS Platform with any New Releases made available to Customer;
(c) To have individual or individuals suitably trained, by attending SaaS Platform training courses;
(d) To notify CyGov promptly of any faults in writing via e-mail or other electronic means requested by CyGov.
(e) If requested, to list the error codes or listing output data, including operational conditions under which the fault occurred, which codes and data shall be considered Confidential Information of CyGov;
(f) To take all reasonable precautions to protect the health and safety of CyGov’s employees, agents, and subcontractors while they are in Customer’s premises;
(g) To make the SaaS Platform available to CyGov and supply all documentation and other information reasonably necessary to enable CyGov to diagnose and remedy any fault in the SaaS Platform; and
For the avoidance of doubt, any failure to satisfy the obligations set forth in this Section 6 of this negates the responsibility of CyGov to perform the Support Services until such failure has been cured.
The terms of this Service Agreement may be updated by the Company from time to time in accordance with its then current policies. Customer will receive at least 30 days advance notice before any changes in service levels take effect.