Backlight Availability SLA and Support Terms

The following Availability SLA and Support Terms apply to all Platform Services provided under a signed Service Order between Customer and Backlight.   

A.     Availability SLA

1.    Availability Promise.  Backlight will use reasonable commercial efforts to ensure that each Platform Service has a Monthly Percentage Uptime of at least 99.9% (“Availability Promise”).  Subject to the terms of this SLA, if the Monthly Percentage Uptime in a given month is less than 99.9%, then Customer will be entitled to service credits as further described in Section A2 below. 

“Monthly Percentage Uptime” is a percentage calculated by subtracting the total number of minutes of Downtime in a calendar month from the total number of minutes in that calendar month and dividing that result by the total number of minutes in the applicable calendar month. “Downtime” means the number of minutes in a calendar month when the applicable Platform Service is unavailable for use, excluding Emergency Downtime, Scheduled Downtime, and the circumstances described in Section C (Exclusions) below. “Emergency Downtime” means unavailability due to remediation of a vulnerability that Backlight reasonably determines requires immediate attention. “Scheduled Downtime” means unavailability resulting from scheduled maintenance of the Platform Services, not to exceed 4 hours in a given calendar month.    

2.    Service Credit.  Subject to the terms of this Section A (SLA), if the Monthly Percentage Uptime is less than the Availability Promise in a given calendar month, then Customer may request a credit (the “Service Credit”) calculated as described in the table below.  The Service Credit is calculated as a percentage of the applicable Subscription Fee for the affected calendar month.  “Subscription Fee” means the monthly base fee paid by Customer for its subscription to the Platform Service and does not include any fees relating to usage (e.g. uploads, downloads, streaming hours) or any fees payable by Customer under any other Service Order or agreement with Backlight.

 

Customer must request each Service Credit within thirty days of the applicable failure to meet the Availability Promise following the instructions provided by Backlight from time to time.  Each Service Credit will be applied to future, unpaid Fees. If Customer does not incur future Fees, then promptly following expiration or termination of the applicable Service Order, Backlight will pay Customer the amounts earned by Customer under this Section A2.

3.     Termination Right.  If Backlight fails to meet the Availability Promise for any three months out of a consecutive twelve month period (a “Chronic Failure”), then Customer will be entitled to terminate the applicable Service Order effectively immediately upon written notice to Backlight; provided that Customer makes its termination election within 15 days of the occurrence of the Chronic Failure. In the event of termination of the Service Order as described in this Section A3, Customer will be entitled to a refund of any Fees paid in advance by Customer under the applicable Service Order for products and services provided after the effective date of termination of the Service Order under this Section. 

4.    Sole and Exclusive Remedies.  Notwithstanding any provision to the contrary in any agreement between the parties, the remedies provided in Section A2 and A3 above will be Customer’s sole and exclusive remedies, and Backlight’s sole and exclusive obligation, in connection with any failure to meet the Availability Promise. 

B.    Support Services

1.    Support Services.  Backlight will provide basic support services and Error (as defined below) correction for each of the Platform Services as further described in this Section B.  Any additional support services will be agreed to by the parties and described in the applicable Service Order.  

2.    Support Hours and Requests.  Support for each Platform Service will be provided in during the Business Hours described below. Customer will submit support requests in the manner communicated by Backlight to Customer from time to time. 

3.    Error Correction.  

    (a)    Errors. “Error” means a failure of the applicable Platform Service to operate in accordance with its Documentation.  Each Error will be assigned one of the following Severity Levels, as reasonably determined by Backlight:  

“Critical Severity Level” means that the Platform Service is inoperable for users.

“High Severity Level” means that the operation of Platform Service or a significant function of the Platform Service is severely limited or degraded and no work around is available. 

“Medium Severity Level” means a moderate loss of functionality or performance of the Platform Services but the major components of the Platform Services remain useable.

“Low Severity Level” means there is no material impact on operation of the Platform Services; “Low Severity Level” includes product feature requests.

    (b)    Support Response.  Backlight will respond to Errors in the operation of the applicable Platform Service as further described in the table below.  Backlight may temporarily resolve Errors by providing a reasonable workaround.

 

* “Business Hours” means Monday through Friday (excluding holidays) during the normal operating hours for the Backlight company that provides the applicable Platform Service. Specifically,

C.    Exclusions

Backlight will have no obligation under this Availability SLA and Support Terms or any other agreement with Customer for any “Downtime” or “Errors” caused by: (a) hardware, software or services not provided by Backlight; (b) Customer’s use of the Platform Service in a manner not in accordance with its Documentation or Backlight’s reasonable instructions; or (c) by other factors outside of Backlight’s reasonable control, including without limitation, any network or device failure external to the data centers used by Backlight, natural disasters, war, acts of terrorism or government action.