1. Availability Standard

Mace Innovations, LLC (“Mace”) will use commercially reasonable efforts to make the data integration software service specified on an order form that is executed by Mace and Customer (“Service”) available to Customer at least 99% of the time as measured over the course of each full calendar month during the applicable subscription term set forth on such order form (the “Availability Standard”); excluding the following (“Excluded Downtime”):  (a) downtime due to circumstances beyond Mace’s reasonable control, including, without limitation, natural disasters, fire, war, terrorism, riot or other civil unrest, strikes or labor stoppages or slowdowns, the passage of law or any action taken by a governmental or public authority, any complete or partial government shutdown, Internet disruptions, or national or regional shortages of adequate power, telecommunications or transportation; (b) downtime caused by any failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other items not supplied by Mace, including without limitation any outage or malfunction of Customer’s Blend and Encompass systems; (c) downtime caused by Customer’s failure to use the Service in accordance with Mace’s then current user documentation for the Service (“Documentation”) or for a purpose for which the Service was not designed; (d) downtime occurring during any period when there are overdue unpaid invoiced amounts; (e) downtime due to a failure or disruption of Customer’s Internet connectivity; (f) downtime due to scheduled maintenance or any other downtime that is mutually agreed upon; (g) suspension of the Service in accordance with agreement by and between Mace and Customer regarding the Service; or (h) downtime due to denial of service attacks or other malicious conduct. 

Whether or not the Availability Standard was met for a particular month shall be determined based on whether the Actual Availability for such month equaled or exceeded the Availability Standard. 

As used herein, the following terms shall have the meaning set forth below: 

“Actual Availability” means (Actual Uptime divided by the total number of minutes in the month) multiplied by 100.

“Actual Uptime” means the total number of minutes in a month minus Total Downtime that does not constitute Excluded Downtime.

“Downtime Duration” means, for each incidence of downtime, the total number of minutes of downtime.

“Total Downtime” means the sum of the Downtime Duration for all downtime incidents in the applicable month.

For example, assume that, in calculating the Actual Availability in a particular month:

-there are 30 days in the month

-there are 80 minutes of Total Downtime, including 30 minutes of scheduled maintenance

In such example:

-the Actual Uptime would be 43150 minutes

-Actual Availability would be 99.88%

Consequently, the Availability Standard was met for such month.

2. Service Credits

For each Mace-verified failure of the Service to meet the Availability Standard (“SLA Failure”) in a particular month, and subject to the procedures set forth below, customer shall be entitled to credits as follows:

* The amount of the service credit is determined by multiplying the applicable percentage set forth in the table above by the total monthly fee for the Service.  The total monthly fee is calculated by dividing the total amount payable for the Service during the subscription term specified on an order form that is executed by Mace and Customer (“Subscription Term”) divided by the number of months in the Subscription Term.

Customer must submit a written claim for a service credit within 7 days after the end of the applicable month.  The claim must specify the SaaS Service, dates and times of the claimed downtime incidents, error messages received (if any), contact information, and a full description of the outage, including logs, if applicable. The claim will be reviewed and a service credit for any Mace-verified SLA Failure will be issued to Customer.

3. Maintenance

3.1 Scheduled Maintenance.  Mace will use commercially reasonable efforts to give Customer at least two business days prior notice (e-mail is acceptable) of all scheduled outages of the Service.

3.2 Emergency Maintenance.  Whenever downtime is necessary in order to conduct emergency maintenance of the Service and/or the hosting environment for Mace Systems, Mace shall notify Customer (e-mail is acceptable) in advance if reasonably feasible.

4. Liquidated Damages

The parties acknowledge that it is impractical and extremely difficult to determine the actual damages or lost revenues that may proximately result from Mace’s failure to meet the Availability Standard.  Accordingly, it is mutually agreed by the parties that any service credits issued by Mace to Customer hereunder: (a) are not a penalty; (b) are reasonable and not disproportionate to the presumed damages to Customer from a failure by Mace to meet the Availability Standard; and (c) shall be Customer’s sole and exclusive remedy with respect to a failure by Mace to meet the Availability Standard.  Service credits are non-transferable (except in connection with a permitted assignment of this Agreement) and may not be exchanged for, or converted to, monetary amounts.  Service credits may only be applied to future charges under the order form executed by Mace and Customer for the Service (“Order Form”).  Service credits automatically expire upon the expiration or earlier termination of the applicable Order Form.