POLL EVERYWHERE SERVICE LEVEL AGREEMENT
Poll Everywhere will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any calendar month (the “Service Commitment”). In the event Poll Everywhere does not meet the Service Commitment, Subscriber will be eligible to receive a Service Credit as provided in this SLA.
“Downtime” means the amount of time the Services are unavailable to Subscriber for reasons other than circumstances qualifying as an Exclusion (defined below).
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of full minutes during the month in which the Services were in a state of Downtime.
A “Service Credit” is a dollar credit, calculated as set forth in the chart below, which we may credit to an eligible account.
Service Commitments and Service Credits
Service Credits are calculated as a percentage of the total charges paid by Subscriber (excluding one-time payments such as setup fees) for the Services affected for the billing cycle in which the Downtime occurred as set forth on the applicable row of the chart below.
|Monthly Uptime Percentage||Service Credit|
We will apply Service Credits only against future payments for the Services. At our discretion, we may issue the Service Credit to the credit card Subscriber used to pay for the billing cycle in which the Downtime occurred. Service Credits will not entitle Subscriber to any refund or other payment from us. Service Credits may not be transferred or applied to any other account Subscriber’s sole and exclusive remedy under the Agreement and otherwise for any unavailability, delay, non-performance, breach of this Service Level Agreement or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the provisions of this SLA.
Service Credit Request and Payment Procedures
To be eligible for a Service Credit with respect to Downtime, Subscriber must notify us within 72 hours of the incident of Downtime. Any email notification of related to such an incident of Downtime must include the words “SLA Downtime Notification” and be sent to firstname.lastname@example.org
To receive a Service Credit, Subscriber must submit a request for a Service Credit by opening a service ticket in our support system, or by sending an email to email@example.com To be eligible for Service Credit the request must be made within fifteen (15) days of the end of the billing cycle in which eligible Downtime has been reported. Any email notification of Downtime must include the words “SLA Credit Request” in the subject line, and the dates and times of each eligible Downtime incident that Subscriber are claiming.
If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then we will apply the a Service Credit to the fees incurred during the billing cycle following the billing cycle in which we confirm Subscriber’s request. A Service Credit confirmed by us shall only apply to one billing cycle may not be carried-forward, applied or used across any subsequent billing cycles. Subscriber’s failure to provide the request and other information as required above will disqualify Subscriber from receiving a Service Credit.
In all events, the total Service Credit payable to Subscriber in a particular billing cycle will not exceed the lesser of: (i) the total fees paid by Subscriber for the billing cycle in which the affected Downtime occurred; or (ii) the total fees that would be due from Subscriber in the billing cycle in which Service Credit for the Downtime is applied. To be eligible for any Service Credits, Subscriber must not be in default of any provision of the Agreement, including but not limited to the payment of fees for the Services.
In addition, if the Monthly Uptime Percentage is less than 95% in any five (5) consecutive calendar months during the term of the Agreement, Subscriber may elect to terminate the Order Form related to such Downtime by providing written notice to Subscriber within thirty (30) days after the end of such fifth month.
The Service Commitment does not apply to any unavailability, suspension, delay or termination of the Services or any other performance issues: (i) caused by reasonable scheduled downtime for maintenance during night, weekend and other “off hours” (provided that we have given Subscriber written notice at least twenty-four hours in advance); (ii) that result from a termination or suspension of Subscriber’s receipt of the Services as provided in the Agreement; (iii) caused by factors outside of our reasonable control, including any force majeure event (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems [other than those involving Poll Everywhere employees], or Internet access or related problems beyond our control; (iv) that result in whole or part from any act, error or omission of Subscriber or any third party; (v) that result from Subscriber’s equipment, hardware, content, software or other technology or third party equipment, hardware, software or other technology, including without limitation any telecommunications or power failures; (vi) denial of service attacks or similar attempts to make a machine, data, site or network resource unavailable to Subscriber or its intended users; or (vi) during any free, beta or trial period for use of the Services (collectively, the “Exclusions”).