These service terms for the Apollo Analytics Management System (these “Service Terms”) are a part of the Service Order between Search Discovery, Inc., a Georgia corporation with an address of 271 17th St. NW Suite 1700 Atlanta, GA 30363 (“SDI”), and the Subscriber named on the Service Order (“Subscriber”) for use of the Service and Professional Services described in the Service Order. SDI and Subscriber may be referred to collectively as the “Parties” or individually as a “Party.” The Service Order and these Service Terms are collectively referred to as the “Agreement.”
Apollo Analytics Management System Service Agreement
- “Affiliate” means an entity that controls, is controlled by, or is under common control with the subject entity, where “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
- “Agency” means an agency that accesses and uses the Service as a Subscriber for its internal use (including providing services to its clients) and/or resells the right to access and use the Service to its clients as an authorized reseller of SDI.
- “Applicable Laws” means all applicable local, state, provincial, federal, and international laws and regulations.
- “Organization” refers to an Apollo organization account. An Organization may contain one or more Properties and each Organization may contain separate configurations for each such Property, as specified in the Service Order.
- “Aggregated Data” has the meaning given in Section 6.
- “Authorized User” means the Representatives of Subscriber (and, if applicable, its Affiliates) who are authorized by Subscriber to access and use the Service under the rights granted to Subscriber pursuant to the Agreement.
- “Beta Feature” means any Service feature that is designated as “Beta” or “Labs” or that is otherwise expressly identified as being for beta testing purposes or unsupported. Notwithstanding anything to the contrary in the Agreement, SDI will have no liability (including in respect of warranties, indemnification obligations or service level obligations) for or related to any Beta Features.
- “Confidential Information” means information disclosed by a Party to the other Party in connection with the Agreement that is marked as confidential or that would reasonably be considered confidential under the circumstances. Confidential Information includes, with respect to SDI and its Affiliates, the non-public aspects of the Service, the SDI Systems and non-public Documentation, and with respect to Subscriber and its Affiliates, all non-public Subscriber Data, and with respect to both Parties, the non-public terms of the Agreement and all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, Inventions, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and business strategies. Confidential Information does not include information that the receiving Party can demonstrate by documentation was (i) already rightfully known to the receiving Party without restriction on use or disclosure prior to the receipt of such information from or on behalf of the disclosing Party, (ii) received by the receiving Party on a non-confidential basis from a third party without a breach of an obligation to maintain its confidentiality, (iii) was or becomes generally known to the public other than by breach of the Agreement by the receiving Party or its Representatives, or (iv) independently developed by the receiving Party without use or reference to the disclosing Party’s Confidential Information.
- “Documentation” means any SDI’s user manuals, handbooks, and installation guides relating to the Service provided by SDI through the Service, online, electronically or in hard copy format.
- “Fees” means the fees for the Service and the Professional Services and any reimbursable expenses, as set forth in the applicable Service Order, and any applicable taxes.
- “Intellectual Property” means all trade secrets, Inventions, patents and patent applications, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such marks), trade names, trade dress, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
- “Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, or discovery, whether or not copyrightable or patentable and whether or not reduced to practice.
- “Personally Identifiable Information” is information that personally identifies or could reasonably be used to personally identify an individual (such as a name, email address, mobile or residence phone number, or residence address), other information is or can be reasonably linked to a particular individual, or other data or information defined as personal information under Applicable Laws.
- “Professional Services” means support services, implementation services and other services supplemental to the Service to be provided by SDI, as described in the Service Order.
- “Property” means a collection of business requirements, analytics configurations, website or mobile application events and attributes, and/or data destination variables. A Property can be used to implement one website or mobile application (or multiple websites or apps that have substantially similar business and tagging requirements). A Property has a 1:1 mapping to an Adobe Launch property. Each individual Property can be deployed on the websites and apps specified in the Service Order.
- “Representatives” means a Party’s Affiliates and its and their employees, directors, officers, consultants, professional advisors, representatives, or agents.
- “Service” means the Apollo platform service offerings to which Subscriber subscribes, as specified in the Service Order, and the accompanying Documentation.
- “Service Order” means the service order executed between Subscriber and SDI (or an Agency or other certified reseller) for the purchase of the Service subscription and, if applicable, Professional Services.
- “SDI IP” means the Service, the Documentation, the SDI Systems, SDI’s Confidential Information and any and all information, data (other than Subscriber Data), documents, materials, works, and other content, devices, methods, processes, hardware, software, technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by SDI in connection with the Service or the Professional Services, and all related Intellectual Property. For the avoidance of doubt, SDI IP includes Aggregated Data and any information, data, or other content derived from SDI’s monitoring of access to or use of the Service but does not include Subscriber Data.
- “SDI Systems” means the information technology infrastructure and Intellectual Property used by or on behalf of SDI in providing the Service and the Professional Services, including all computers, software, hardware, databases, electronic systems (including database management systems), websites, and networks, whether operated by SDI or through the use of third-party services.
- “SLA” means the Service Level Agreement set forth in Exhibit A.
- “Subscriber Data” means the information, data, and other content that is submitted to or through the Service by or on behalf of Subscriber and the Reports generated by the Service. Subscriber Data does not include Aggregated Data.
- “Third-Party Materials” means any computer programs, technology, products, equipment, components, materials, content or information of third parties that are made available to Subscriber in connection with the Service.
- “Reports” means information provided within the Service regarding Subscriber’s use and performance of the Service.
- “Term,” “Subscription Term,” and “Renewal Subscription Term” have the meaning set forth in Section 7.
2. PROVISION OF ACCESS
a) Use of the Service. Subject to and conditioned on Subscriber’s payment of all Fees and compliance with all other terms and conditions of the Agreement, SDI hereby grants Subscriber a non-exclusive, non-transferable (except as provided in Section 22), non-sublicensable right to access and use the Service during the Term, solely for use by Authorized Users and solely for Subscriber’s internal business operations.
b) Subscriber Responsibilities. Subscriber is responsible for (i) the accuracy and completeness of Subscriber’s business rules and requirements and Subscriber’s initial and ongoing configuration and setup of the Service; (ii) ensuring that the Services are compatible with Subscriber’s business and systems requirements; (iii) ensuring that the information Subscriber provides in connection with the Service is current, accurate, and complete; and (iv) the provision, maintenance, and use of Subscriber’s hardware, network, internet connectivity, and software. Subscriber shall comply with the Agreement and all Documentation. Subscriber is responsible for all acts and omissions of its Authorized Users and Representatives, and any act or omission by an Authorized User or Representative of Subscriber that would constitute a breach of the Agreement if done by Subscriber will be deemed a breach of the Agreement by Subscriber.
c) Affiliates. Subscriber may enable its Affiliates to use the Service. Unless SDI accepts a Service Order from an Affiliate or otherwise agrees in writing, all use of the Service by Subscriber’s Affiliates will be under Subscriber’s Account, SDI will invoice Subscriber and not its Affiliates for the Service used by such Affiliates (including Fees for any additional Properties or Organizations), and Subscriber shall pay all invoices to SDI. When an Affiliate of Subscriber uses the Services, all applicable references to “Subscriber” in the Agreement relating to access or use of, or restrictions or limitations on access or use of, the Service refer to such Affiliate. Unless SDI accepts a Service Order from the Subscriber Affiliate, Subscriber is responsible for such Affiliate’s compliance with the terms of the Agreement, and Subscriber shall be responsible for such Affiliate’s acts and omissions relating to the Agreement as though they were those of Subscriber. Only the entity (Subscriber or its Affiliate) specified in the applicable Service Order may (i) take any action to enforce such entity’s rights and obligations arising from the Agreement, or (ii) request technical support for such entity with respect to the Service. Subscriber may be required to purchase additional training or other Professional Services to support Affiliate use.
d) Subcontractors. SDI may use subcontractors to facilitate its obligations under the Agreement, and SDI shall be responsible for the acts and omissions of such subcontractors relating to the Agreement as though they were those of SDI.
SDI shall enable an account (the “Account”) for Subscriber and its Authorized Users to access and use the Service. Subscriber and Authorized Users shall protect usernames, passwords, access and Account information under their control. Subscriber is solely responsible for any and all activities that occur under the Account, and except to the extent caused by SDI’s breach of the Agreement, SDI is not responsible for unauthorized access to the Account. Subscriber shall notify SDI immediately upon learning of any unauthorized use of the Account or any other breach of security.
4. ACCESS TO THE SERVICE
- Restrictions on Use. Subscriber shall use the Service only as set forth in the Agreement and the Documentation and, except as expressly provided in the Service Order with respect to Organizations, not for the benefit of any third party. Unless otherwise approved in writing by SDI, Subscriber shall not, and shall not allow its Representatives or any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Service (including any library of business rules or requirements, SDI IP, or Third-Party Materials; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Service, SDI Systems or Third-Party Materials; (iii) except as agreed in writing by SDI, share, rent, lease, sell, assign or otherwise distribute access to or transfer rights in or to the Service, SDI Systems, or Third-Party Materials; (iv) use the Services to operate any timesharing, service bureau, software as a service, or similar business or, except as agreed in writing by SDI, to provide services to any third party; (v) except as agreed in writing by SDI, display the Service, SDI IP or SDI Systems to any person or entity other than Authorized Users; (vi) remove any proprietary notices or labels on the Service, SDI IP or Third-Party Materials; (vii) use the Service to store, transmit or introduce any malicious code that interferes or attempts to interfere with the operation of the Service or SDI Systems; (viii) interfere with or disrupt the integrity or performance of the Service or SDI Systems or attempt to do so; (ix) use the Service or Third-Party Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; or (x) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or other Intellectual Property Rights associated with the Service for any purpose without the express written consent of SDI.
- Changes to Service. SDI reserves the right, in its sole discretion, to make any changes to the Service that it deems necessary or useful, including changes to maintain or enhance the Service or to comply with Applicable Laws. Notwithstanding the foregoing, except as required to comply with Applicable Laws, SDI will provide at least 90 days’ notice of any deprecation or material reduction of the Service or its features or functionality. Subscriber acknowledges and agrees that Subscriber has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality.
- Third Party Materials. Any Third-Party Materials are subject to their own terms and conditions and the applicable flow-through provisions. If Subscriber does not agree to abide by the terms and conditions for any such Third-Party Materials, then Subscriber should not install or use such Third-Party Materials.
- Service Level Agreement. Subject to the terms and conditions of the Agreement, SDI shall use commercially reasonable efforts to make the Service available and provide support in accordance with the service levels set out in the SLA.
- Service Suspension. Notwithstanding anything to the contrary in the Agreement, SDI may temporarily suspend Subscriber’s and any Authorized User’s access to any portion or all of the Service if: (i) SDI reasonably determines that (A) there is a material risk to or disruption of the security or performance of the Service or the SDI Systems or to any other customer, business partner or vendor of SDI that was caused by Subscriber, its Affiliates, or its or their Authorized Users or Representatives; (B) Subscriber or any Authorized User is using the Service, the SDI Systems or other SDI IP for fraudulent or illegal activities or in violation of the Agreement; (C) Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) SDI’s provision of the Service to Subscriber or any Authorized User is prohibited by Applicable Law; or (ii) in accordance with Section 8(c)(iii) (any such suspension described in subclause (i) or (ii), a “Service Suspension”). SDI shall use commercially reasonable efforts to provide advance written notice of any Service Suspension to Subscriber (including by phone or email to Subscriber’s business contact), to work with Subscriber to resolve the circumstance giving rise to the Service Suspension, and to provide updates regarding resumption of access to the Service following any Service Suspension. SDI shall resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is resolved. SDI will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Subscriber or any Authorized User may incur as a result of a Service Suspension. SDI acknowledges that suspending Subscriber’s right to access or use the Service is a significant action, and SDI shall not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to SDI’s suspension right.
- Effect of Suspension. During a Service Suspension, (i) Subscriber remains responsible for all Fees and other charges for the suspended Service; and (ii) Subscriber will not be entitled to any compensation or credits for any period of Service Suspension, unless the suspension was due to SDI’s error or breach of the Agreement.
6. AGGREGATED DATA
SDI may monitor Subscriber’s use of the Service and collect and use associated metadata, including IP addresses, stored sessions, and network metadata, for the purposes of providing the Service. In addition, SDI may collect and compile metadata, data and information related to the use of the Service by Subscriber and other subscribers that is aggregated and anonymized such that neither Subscriber nor any other subscriber is identifiable as its source (“Aggregated Data”). SDI solely owns all right, title, and interest in Aggregated Data and all Intellectual Property rights therein. SDI may (i) use such Aggregated Data for any lawful purpose, including for improvement of the Service and quality control processes, and (ii) make Aggregated Data publicly available or transfer it to third parties in compliance with Applicable Laws.
7. TERM AND TERMINATION
- Agreement Term; Subscription Term. The duration of each subscription term to the Service, as specified in the applicable Service Order, is a “Subscription Term.” The term of the Agreement (the “Term”) begins on the effective date of the Service Order for the initial Subscription Term and ends on the date of termination or expiration of the final Renewal Subscription Term.
- Automatic Renewal. At the end of each Subscription Term, the subscription to the Service will automatically renew for an additional 12-month period (each, a “Renewal Subscription Term”), unless either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of such Subscription Term.
- Termination. In addition to any other termination right set forth in these Service Terms:
- SDI may terminate the Agreement, effective on written notice to Subscriber, if Subscriber: (A) fails to pay any amount when due hereunder, and such failure continues more than 15 days after SDI’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 4(a) or Section 9;
- either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
- either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any bankruptcy, liquidation, dissolution or similar proceeding; (C) makes or seeks to make a general assignment for the benefit of its creditors; (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (E) ceases to operate in the ordinary course.
4. Effect of Termination.
- If Subscriber terminates the Agreement as a result of SDI’s material breach, then SDI shall refund Subscriber a pro rata amount of any prepaid Fees for the Service applicable to the unused portion of the then-current Subscription Term (excluding any Fees for Professional Services or other one-time fees); provided, however, that if Subscriber was unable to use the Service as a result of SDI’s material breach, the unused portion of the Subscription Term will be measured from the last date on which Subscriber was able to use the Service (or the date of Subscriber’s written notice of breach, if later). If SDI terminates the Agreement due to Subscriber’s material breach, SDI shall not refund any amounts to Subscriber. Except as expressly provided in this clause (d)(i), no expiration or termination of the Agreement will affect Subscriber’s obligation to pay all Fees or entitle Subscriber to any refund.
- Upon termination of the Agreement, all of Subscriber’s rights under the Agreement immediately terminate (with the exception of those surviving termination, as described below). Subscriber shall immediately discontinue use of the Service and the SDI IP and, without limiting Subscriber’s obligations under Section 9, Subscriber shall delete, destroy, or return all copies of the SDI IP and certify in writing to the SDI that the SDI IP has been deleted or destroyed.
- All provisions that by their nature should survive termination of the Agreement will do so (including, by way of example and not limitation, payment obligations, indemnification and defense obligations, and duties of confidentiality).
- Fees. The annual subscription Fee for the Service consists of a platform fee and service fees based on the number of Properties (and, if Subscriber is an Agency, the number of Organizations and respective Properties) for which the Service is authorized for use, as specified in the Service Order, for the number of Authorized Users specified in the Service Order. The Fees for Professional Services are as set forth in the Service Order. Except as otherwise specified in the Agreement, (i) payment obligations are non-cancelable and Fees paid are non-refundable, (ii) Properties and Organizations are not interchangeable and additional Fees will be charged if Subscriber adds additional Properties or Organizations, (iii) Subscriber may not reduce its commitment specified in the Service Order; and (iv) Subscriber is not entitled to any refund if the number of Properties (or, if applicable, Organizations) for which the Service is actually used is less than the number specified in the Service Order, and any unused volume will not be carried over to any Renewal Subscription Term. If Subscriber’s use during a Subscription Term exceeds the use specified in the Service Order, SDI will invoice Subscriber for the additional use, prorated for the remainder of the then-current Subscription Term. Overage Fees will be charged at the rate specified in the Service Order.
- Payment Terms. Subscriber shall pay SDI the Fees set forth in the Service Order without offset or deduction. Subscriber shall make all payments in US dollars on or before the due date, in accordance with the payment terms set forth in the Service Order. If the Service Order does not include payment terms, Subscriber shall pay Fees within 30 days after the date of the applicable invoice.
- Late Payments. If Subscriber fails to make any payment when due, without limiting SDI’s other rights and remedies: (i) SDI may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under Applicable Laws; (ii) Subscriber shall reimburse SDI for all reasonable costs incurred by SDI in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 15 days or more, SDI may suspend Subscriber’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full; provided that SDI shall notify Subscriber (including by phone or email to Subscriber’s business contact) at least 10 days before suspending the Service. SDI shall not exercise its suspension or termination rights, apply interest on late payments or initiate collection if Subscriber disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.
- Taxes. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on SDI’s income.
- Renewal Subscription Terms. SDI may increase Fees for any Renewal Subscription Term, effective on the first day of such Renewal Subscription Term, by providing written notice to Subscriber at least 30 days prior to the commencement of such Renewal Subscription Term. Such notice may be in the form of an invoice or any other form of notice used by SDI to communicate with Subscriber. If Subscriber objects to the increase, then Subscriber may elect to not renew the Service by providing notice of non-renewal as described in Section 7(b).
9. CONFIDENTIAL INFORMATION
- Restrictions on Use and Disclosure. From time to time during the Term, either Party (the “receiving Party”) may disclose or make available Confidential Information to the other Party (the “disclosing Party”). The receiving Party shall use the Confidential Information of the Disclosing Party solely to perform its obligations and exercise its rights under the Agreement, to comply with Applicable Laws or as otherwise permitted under the Agreement. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s Affiliates and its and their Representatives or service providers who (i) have a need to know the Confidential Information and (ii) are bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as this Section 9. The receiving Party is responsible for use and disclosure of the Confidential Information by its Affiliates and its and their Representatives and service providers and their compliance with the obligations of the receiving Party under this Section 9. The receiving Party shall protect Confidential Information of the disclosing Party from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature. The receiving Party shall promptly notify the disclosing Party, without undue delay in accordance with Applicable Laws, of unauthorized access, use, or disclosure of any of the disclosing Party’s Confidential Information in the receiving Party’s possession or under its control.
- Disclosure Required by Law. The receiving Party may disclose Confidential Information of the disclosing Party to the limited extent required (i) in order to comply with the order of a court, regulatory agency or other governmental body of competent jurisdiction, or as otherwise necessary to comply with Applicable Law, provided that the receiving Party shall first have given written notice to the other Party (if legally permitted to do so) and made a reasonable effort to obtain (or assist the other Party in obtaining) a protective order; or (ii) to establish a Party’s rights under the Agreement, including to make required court filings. If the receiving Party is legally compelled to disclose Confidential Information of the other Party, the receiving Party shall disclose only that portion of the Confidential Information that is legally required to be disclosed and the receiving Party shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
- Return of Confidential Information and Subscriber Data.
- Upon Subscriber’s request for SDI to provide Subscriber Data or Reports at any time up to 90 days after termination of the Agreement for the Service, SDI shall either (i) provide Subscriber with limited access to the Service, at no additional cost and subject to these Service Terms, solely for the purpose of allowing Subscriber to download Subscriber Data and Reports; or (ii) provide an export file of Subscriber Data and Reports stored on SDI’s systems in a commonly used format reasonably determined by SDI and subject to SDI’s standard fees for such export. SDI may, but has no obligation to, maintain or return Subscriber Data or Reports more than 90 days after termination of the Agreement.
- Upon Subscriber’s request at any time during the Term or up to 90 days after termination of the Agreement for the Service, SDI shall promptly destroy or overwrite Subscriber Data for the Service or Subscriber’s Confidential Information, other than Subscriber Data or Subscriber’s Confidential Information contained in automatic computer backups or historical archives or that must be retained to fulfill obligations under the Agreement, for regulatory, legal, or audit purposes, or for compliance with SDI’s data retention policies. If Subscriber requests that SDI permanently destroy or overwrite Subscriber Data, Subscriber releases SDI from any claims or liability relating to that Subscriber Data. If Subscriber does not request deletion of its Subscriber Data or Subscriber’s Confidential Information, SDI will destroy or overwrite it in accordance with SDI’s document retention policies and standard backup and archival procedures, after the data or information is no longer reasonably necessary to fulfill obligations under the Agreement or for regulatory, legal, or audit compliance.
- Upon termination or expiration of the Agreement or upon SDI’s request at any time during the Term, Subscriber shall promptly destroy or overwrite SDI’s Confidential Information, other than SDI Confidential Information contained in Subscriber’s automatic computer backups or historical archives or that must be retained for regulatory, legal, or audit purposes
- Confidential Information and Subscriber Data retained in accordance with this Section will be subject to the privacy, security, and confidentiality obligations set forth in Sections 9, 10 and 11 of these Service Terms for as long as it is retained.
10. PRIVACY AND PERSONALLY IDENTIFIABLE INFORMATION
- Compliance with Laws. For the purposes of the Agreement, each Party is responsible for complying with Applicable Laws applicable to it, including legal requirements with respect to data privacy. To the extent that Subscriber is required to comply with the California Consumer Privacy Act (“CCPA”), the Virginia Consumer Data Protection Act, the Canadian Personal Information Protection and Electronic Documents Act, the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act (UK GDPR), the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (GDPR) or any other existing or newly enacted Applicable Laws regarding data privacy, SDI shall facilitate Subscriber’s compliance with its obligations under such Applicable Laws, including with respect to data security and responses to individual data subject requests relating to Personally Identifiable Information in SDI’s possession or under its control.
- Use of Subscriber Data. SDI may retain, use, and disclose Subscriber Data solely (i) to provide and maintain the Service, provide customer support and otherwise perform its obligations under the Agreement; (ii) for internal business purposes, including to evaluate, develop, and improve the Service; and (iii) to comply with Applicable Laws.
- Processing of Subscriber Data. If SDI processes Subscriber Data on behalf of Subscriber, the Agreement and the Documentation are Subscriber’s instructions for processing Subscriber Data. If SDI processes Subscriber Data that includes personal information, as defined by the CCPA (“CCPA Personal Information”) on behalf of Subscriber, the Parties acknowledge and agree that SDI is a “Service Provider” as defined in the CCPA.. When SDI processes CCPA Personal Information for or on behalf of Subscriber, SDI collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in the Agreement and does not sell (as defined in the CCPA) CCPA Personal Information. SDI certifies that it understands and will comply with the foregoing restrictions.
11. DATA SECURITY
- Data Security Measures. SDI shall implement and maintain commercially reasonable technical, administrative and physical safeguards and procedures designed to comply with Applicable Laws, to ensure the security, confidentiality and integrity of Subscriber Data, protect against anticipated threats or hazards to the security or integrity of Subscriber Data and Subscriber’s Confidential Information, and protect against unauthorized access, modification, destruction, disclosure or use of Subscriber Data and Subscriber’s Confidential Information. SDI shall use commercially reasonable measures to ensure that any SDI subcontractors use reasonable data protection safeguards and procedures in handling any Subscriber Data or Subscriber’s Confidential Information.
- Breach Notification. In the event of unauthorized access, use, or disclosure of Subscriber Data or Subscriber’s Confidential Information in SDI’s possession or under SDI’s control, SDI shall (i) promptly notify Subscriber of such incident without undue delay in accordance with Applicable Laws and provide Subscriber with information regarding such incident as required by Applicable Laws or as reasonably requested by Subscriber to enable Subscriber to comply with its obligations under Applicable Laws; and (ii) use commercially reasonable efforts to identify the cause of the incident and remediate the cause of the incident within SDI’s systems, to the extent such remediation is within SDI’s reasonable control.
- Subscriber Indemnification. Subscriber shall indemnify, hold harmless and defend SDI, its Affiliates and its and their Representatives from any and all liabilities, losses, damages, judgments, awards, settlement payments, penalties, fines, fees, interest, costs or expenses (including reasonable fees of attorneys, other professionals and witnesses, court costs and filing fees, and other reasonable investigation and defense expenses) (“Losses”) incurred as a result of any claim, action or proceeding (an “Action”) brought by a third party arising out of, resulting from or alleging (i) Subscriber’s breach of the Agreement, (ii) Subscriber’s use of the Service (other than Infringement claims for which SDI is obligated to indemnify Subscriber under clause (b)(i) of this Section), (iii) Subscriber’s violation of Applicable Laws, or (iv) the Subscriber Data.
- SDI Indemnification. SDI shall indemnify, defend, and hold harmless Subscriber and its Representatives from and against any and all Losses incurred as a result of any Action brought by a third party (other than an Affiliate of Subscriber or a Representative of Subscriber or its Affiliates) (i) alleging that Subscriber’s or an Authorized User’s use of the Service (excluding Subscriber Data and Third-Party Materials) in accordance with the Agreement infringes or misappropriates such third party’s US patents, copyrights, or trade secrets (an “Infringement”); or (ii) arising out of, resulting from or alleging SDI’s breach of the Agreement or violation of Applicable Laws. SDI has no obligation with respect to any actual or alleged Infringement or violation of Applicable Laws that arises or is alleged to arise from: (A) Third-Party Materials or Subscriber Data; (B) access to or use of the Service in combination with any hardware, system, software, network, or other materials or service not provided by SDI or specified in the Documentation for Subscriber’s use with the Service, if the Infringement would not have occurred but for such combination; (C) modification of the Service other than by or on behalf of SDI or with SDI’s written approval in accordance with SDI’s written specifications; or (D) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Subscriber by or on behalf of SDI.If the Service is subject to an Action alleging Infringement and as a result, Subscriber’s use of the Service is enjoined, then SDI shall, at no cost to Subscriber, procure for Subscriber the right to continue using the Service or replace it with non-infringing or modified service of materially equivalent functionality. If neither of these two options is available on terms that are commercially reasonable for SDI, then SDI may terminate Subscriber’s right to access and use the Service, in which case SDI shall refund Subscriber a pro rata amount of any prepaid Fees applicable to the unused portion of the then-current Subscription Term (excluding any fees for Professional Services or other one-time fees) provided, however, that if Subscriber was unable to use the Service as a result of the Infringement, the unused portion of the Subscription Term will be measured from the last date on which Subscriber was able to use the Service.
- Indemnification Procedure. Each Party seeking indemnification (the “Indemnitee“) shall promptly notify the other Party (the “Indemnitor“) in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section. The Indemnitor shall promptly assume sole control of the defense and/or settlement of the Action, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitee shall cooperate in all necessary respects with the Indemnitor in the defense of the Action, at the Indemnitor’s sole cost and expense. The Indemnitor shall not, without Indemnitee’s written approval, (i) make any admissions on the Indemnitee’s behalf or (ii) settle any Action unless the settlement unconditionally releases the Indemnitee of all liability. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this subsection (c) will not relieve the Indemnitor of its obligations under this Section, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
- Exclusive Remedy. This Section states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to Infringement and any other type of Action described in this Section. This Section does not apply to any direct claims between the Parties.
13. THIRD PARTIES
- If Subscriber uses the Service on behalf of a Client, Subscriber represents and warrants that (i) Subscriber is authorized to act on behalf of such Client, (ii) as between such Client and Subscriber, the Client owns any rights to such Client’s Subscriber Data, and (iii) Subscriber shall not disclose Client’s Subscriber Data to any other person or entity without the Client’s consent.
- If Subscriber provides access to Subscriber’s Account or any portion thereof to any Client, Subscriber shall ensure that such Client agrees in writing to be bound by these Service Terms.
- SDI makes no representations or warranties for the direct or indirect benefit of any Client. With respect to Clients, Subscriber shall take all measures necessary to disclaim any and all representations or warranties that may pertain to SDI, the Service or the Reports, or any use thereof, other than the representations and warranties for the Service contained in these Service Terms.
- Subscriber shall indemnify, defend, and hold harmless SDI and its Representatives from and against any and all Losses incurred as a result of any Action brought by a Client arising out of, resulting from or alleging (i) use of the Service or Reports by such Client or by Subscriber on behalf of such Client, (ii) any representations and warranties made by Subscriber to such Client concerning the Service or Reports other than the representations and warranties for the Service contained in these Service Terms; (iii) violations of Subscriber’s obligations of privacy to such Client; and (iv) any acts or omissions of Client.
14. REPRESENTATIONS AND WARRANTIES.
- Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has full power and authority to enter into the Agreement; (ii) the Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such Party is a party or by which it is bound; and (iii) it will comply with all Applicable Laws applicable to its business and the provision or use of the Service (as the case may be).
- SDI Warranties. SDI warrants that (i) the Service will perform in all material respects in accordance with the applicable, then-current Documentation; (ii) SDI shall use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the Service contains no computer virus, Trojan horse, worm, or other similar malicious code; and (iii) the Professional Services will be performed by SDI in a professional manner consistent with generally accepted industry practice.
- Exclusive Remedy for SDI Warranties; Warranty Exclusion.
- If SDI fails to conform to a warranty in clause (b)(i) or (ii) of this Section and SDI does not render the Service conforming within 30 days of Subscriber’s written notice to SDI of the nonconformity, then, as Subscriber’s sole and exclusive remedy for any nonconformity, Subscriber may immediately terminate its subscription for the Service upon notice to SDI, and SDI shall refund Subscriber a pro rata amount of any prepaid Fees applicable to the unused portion of the then-current Subscription Term (excluding any fees for Professional Services or other one-time fees). The refund will be calculated from the date that Subscriber notifies SDI of the nonconformity.
- SDI’s warranty in clause (b)(iii) of this Section will expire 30 days after the completion of the Professional Services, and Subscriber must notify SDI of any breach of warranty before that expiration date. Subscriber’s sole and exclusive remedy for SDI’s breach of the warranty in clause (b)(iii) will be, at SDI’s option, to (A) use commercially reasonable efforts to reperform the Professional Services in a manner that conforms to the warranty or (B) refund to Subscriber the fees paid by Subscriber to SDI for the nonconforming Professional Services.
- SDI’s warranties in clause (b) of this Section do not apply to the extent that the nonconformity was caused by (i) access to or use of the Service in combination with any hardware, system, software, network, or other materials or service not provided by SDI or specified in the Documentation for Subscriber’s use with the Service in the Documentation; (ii) modification of the Service other than by or on behalf of SDI or with SDI’s written approval in accordance with SDI’s specification; or (iii) failure to timely implement any modifications, upgrades, or enhancements made available to Subscriber by or on behalf of SDI.
15. DISCLAIMER OF WARRANTIES
Except as specifically set forth in these Service Terms, (a) the Service is provided “as is” and “as available” basis and (b) neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all implied warranties, including the implied warranties of merchantability and fitness for a particular purpose. Without limiting the generality of the foregoing, SDI does not represent or warrant that the Service will be uninterrupted or free from bugs, errors or omissions, that defects will be corrected, that the Service or the SDI Systems will be free of viruses or other harmful components, or that the use of the Service will be correct, timely or otherwise reliable.
16. LIMITATION OF LIABILITY
- Exclusion of Certain Damages. In no event will either Party be liable to the other Party for cost of cover or any indirect, special, punitive, consequential or incidental damages, including lost profits or lost data, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to a Party’s gross negligence or willful misconduct, to a Party’s breach of its privacy, security, and confidentiality obligations set forth in Sections 9, 10 and 11, to a Party’s indemnification obligations, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.
- Limitation of Liability. In no event shall a Party’s aggregate liability under the Agreement exceed the amounts paid or payable to SDI under the Agreement in the 12 months preceding the Action. The previous sentence will not apply to a Party’s gross negligence or willful misconduct, to a Party’s indemnification obligations, to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party, or to Subscriber’s obligations to pay Fees.
- Limitation of Claims. Neither Party may bring any claim relating to the Agreement more than two years after the events giving rise to the claim occurred. The previous sentence will not apply to a Party’s breach of its privacy, security, and confidentiality obligations set forth in Section 9, 10 and 11, to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party, or to Subscriber’s obligations to pay Fees.
- General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such Party, its Affiliates or, in the case of Subscriber, Authorized Users. Without these limitations, the fees for the Service would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the Parties may have additional rights.
17. PROPRIETARY RIGHTS; FEEDBACK
- SDI Intellectual Property. SDI and SDI’s licensors retain and own all right, title, and interest in the SDI IP and all enhancements or improvements to, or derivative works of, the foregoing, including any Intellectual Property rights therein. SDI reserves all rights not expressly granted to Subscriber in the Agreement. Except for the limited rights expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any Intellectual Property rights or other right, title, or interest in or to the SDI IP.
- Subscriber Intellectual Property. Subscriber retains all ownership rights in Subscriber Data and Subscriber’s Confidential Information, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to SDI any ownership interest in or to the Subscriber Data or Subscriber’s Confidential Information, provided that SDI has the right to create Aggregated Data and owns all right, title, and interest in Aggregated Data both during and after the Term.
- Feedback. If Subscriber or any of its Representatives provides SDI with any suggestions or recommendations about the Service or other SDI IP or other comments, questions, or feedback (“Feedback”), Subscriber grants to SDI a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such Feedback. Notwithstanding the foregoing, nothing in this Section grants SDI a license to use any Inventions covered by a registered patent owned by Subscriber. SDI is not required to use any Feedback.
18. U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Service, including its rights to use, modify, reproduce, release, perform, display or disclose the Service or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in the Agreement.
19. EXPORT REGULATION
Subscriber shall comply with all Applicable Laws that prohibit or restrict the export or re-export of the Service or any Subscriber Data outside the US, including completing all required undertakings and obtaining any necessary export license or other governmental approval.
Unless a Party has provided written instructions to the contrary to the other Party, either Party may include the name or logo of the other Party (or its Affiliates, if applicable) in lists of customers or vendors. Except as set forth in this Section, neither Party shall issue or release any press release or other announcement relating to the Agreement.
SDI shall communicate announcements of general interest by email or by posting on its website or in Subscriber’s administrative console for the Account. SDI shall provide Subscriber with legal notices in writing by email, mail, or overnight courier to the address provided by Subscriber. Subscriber shall immediately notify SDI if Subscriber’s address for notice changes. All notices to SDI must be in writing, with account notices emailed to SDI’s primary business contact for Subscriber and legal notices sent to email@example.com. Notice will be deemed given: (a) upon receipt if sent by overnight courier or mail; or (b) when verified by return email or by automated receipt or electronic logs if sent by email.
Neither Party may assign its rights, duties, or obligations under the Agreement without the other Party’s prior written consent; provided, however, that a Party may assign the Agreement to an acquirer of all or substantially all, or control of all or substantially all, of the capital stock, assets or business of such Party (whether as a result of a merger, acquisition, sale of assets, change of control, or operation of law) or to an Affiliate of such Party, without the need for the other Party’s consent; provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) SDI may terminate the Agreement if Subscriber assigns the Agreement to an entity that that offers a SaaS-based service or software product for web analytics that competes with the Service. Any purported assignment or delegation in violation of this Section will be null and void. No assignment will relieve the assigning or delegating Party of any of its obligations hereunder that accrued before the effective date of the assignment. The Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns.
23. FORCE MAJEURE
Neither Party will be liable for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), to the extent caused by natural disaster, act of war or terrorism, governmental action, flood, fire, earthquake, explosion, riot or other civil unrest, epidemic or widespread illness, strikes, labor stoppages or slowdowns, electrical, telecommunications, or other utility failures, denial of service attacks or other circumstances beyond the Party’s reasonable control. A Party seeking relief from performance under this Section must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate the affected Service. Such termination will not result in any liability by either Party, except that, if Subscriber terminates the affected Service for SDI’s failure, SDI shall refund Subscriber a pro rata amount of any prepaid Fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any Professional Services fees or other one-time fees). If Subscriber was unable to use the Service as a result of the force majeure event, the unused portion of the Subscription Term will be measured from the last date on which Subscriber was able to use the Service.
Failure to enforce any provision of the Agreement will not constitute a waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. No such waiver will constitute a waiver of any other provision or of the same provision on another occasion.
If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Upon any determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. All other provisions of the Agreement will remain in full force and effect.
26. RELATIONSHIP OF THE PARTIES
The relationship between the Parties is that of independent contractors and the Agreement does not create an agency, partnership or joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
27. THIRD-PARTY MATERIALS
SDI is not responsible for and does not in any way endorse any Third-Party Materials or websites linked to SDI’s website or the Service.
28. NO THIRD-PARTY BENEFICIARIES
Except as expressly set forth herein, the Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity (including any Client) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
29. EQUITABLE RELIEF
Each Party acknowledges and agrees that a breach or threatened breach by such Party, its Affiliates or its or their Representatives (or, in the case of Subscriber, Authorized Users) of any of its obligations under Section 9 or, in the case of Subscriber, under Section 4(a), may cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
30. GOVERNING LAW; VENUE
his Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any conflict of law principles that would require or permit the application of the laws of any other jurisdiction. Any Action arising out of or related to the Agreement will be instituted exclusively in the federal and state courts located in the city of the state of domicile of the defendant in such Action, and each Party irrevocably submits to the exclusive jurisdiction of such courts.
31.UPDATES TO SERVICE TERMS
- Modification Notice. If SDI modifies these Service Terms, it shall provide prior written notice (“Modification Notice”) to Subscriber of such modifications at least 30 days prior to the effectiveness of the modifications. If modifications are necessary to comply with Applicable Laws, SDI is not required to provide prior notice but shall use commercially reasonable efforts to provide prior notice when practicable.
- Renewal Modification. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Subscription Term, then the modifications will become effective for the Service upon renewal. Subscriber may avoid the applicability of the changes only by cancelling the renewal of Subscriber’s subscription as set forth in Section 7(b).
- Mid-Term Modification. If the Modification Notice states that the modifications will become effective during the then-current Subscription Term, and the modifications materially and adversely affect Subscriber, then Subscriber may terminate Subscriber’s subscription to the Service by providing written notice to SDI at any time within the 30-day period following the date of the Modification Notice. Subscriber’s termination will become effective on the later to occur of (i) the date on which Subscriber delivers a timely termination notice or (ii) the date on which the applicable modifications become effective, provided that, upon written request by Subscriber, SDI shall continue to provide the Service to Subscriber as needed to manage a reasonable transition to another vendor, not to exceed 60 days. If Subscriber terminates a Service subscription pursuant to this Section 32(c), then SDI shall refund Subscriber a pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the then-current Subscription Term (excluding any Professional Services or other one-time fees).
- General. If Subscriber does not terminate the affected Service subscription as specified in this Section, then Subscriber will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.
33. ENTIRE AGREEMENT
The Agreement is the Parties’ entire agreement relating to its subject matter and supersedes any prior or contemporaneous agreements or understandings with respect thereto. Subscriber’s standard terms of purchase or vendor management terms (including purchase order terms or click-through terms), if any, are inapplicable. Except to the extent expressly specified otherwise, if there is any conflict between the Service Order, these Service Terms and any addendum signed by the Parties, the following order of precedence applies: (i) first, any addendum between the Parties; (ii) second, the Service Order; and (ii) third, these Service Terms. The headings in these Service Terms are for convenience of reference only and shall not affect their interpretation or construction.
34. PURCHASE THROUGH AGENCIES/RESELLERS
- In the event of any conflict between the Agreement and the order, agreement or other document between Subscriber and the Reseller for Subscriber’s purchase or other acquisition of the Service (the “Reseller Agreement”) other than those specified in subsection (b) of this Section, the provisions of the Agreement will prevail. If a Reseller has granted Subscriber any rights that SDI does not also directly grant to Subscriber in the Agreement, or that conflict with the Agreement, then Subscriber’s sole recourse with respect to such rights is against the Reseller.
- The initial Subscription Term will begin, renew, and terminate in accordance with the terms of the Reseller Agreement. The billing, payment, and termination sections of the Agreement may not apply to Subscriber and Subscriber’s billing and payment rights and obligations are governed by the Reseller Agreement.
- Subscriber acknowledges and agrees that (i) if Subscriber does not pay the fees payable by Subscriber to the Reseller from whom Subscriber obtained the Service or if Reseller otherwise cancels Subscriber’s subscription to the Service in accordance with the Reseller Agreement, SDI may suspend or terminate Subscriber’s Account, with or without notice to Subscriber, upon request of the Reseller; and (ii) if the Reseller from whom Subscriber obtained the Service fails to pay SDI any amounts due in connection with such resale, then SDI may suspend or terminate Subscriber’s Account, with or without notice to Subscriber. Subscriber agrees that Subscriber’s remedy in the event of such suspension or termination is solely against the Reseller and that SDI is not liable to Subscriber in any manner for such suspension or termination.
- SDI may modify these Service Terms and post the updated version at https://apolloplatform.com/service-agreement. Any modification of these Service Terms will take effect upon the date of the modification and Subscriber may avoid the applicability of the modification only by ceasing its use of the Service.
SERVICE LEVEL AGREEMENT
1. Service Availability.
1.1 Availability Requirement. SDI shall employ commercially reasonable efforts to make the Service Available, as measured over the course of each calendar month during the Subscription Term (each such calendar month, a “Service Period”), excluding the time the Service is not Available as a result of one or more Exceptions (described below), at least 99.9% of the time (the “Availability Requirement”). “Available” means the Service is available and operable for access and use by Subscriber and its Authorized Users over the Internet and performing in material conformity with the applicable Documentation.
1.2 Exceptions. No period of Service downtime, performance degradation or inoperability will be included in calculating Availability to the extent that such downtime, degradation or inoperability is due to any of the following (“Exceptions”):
- use of the Service by Subscriber or its Authorized Users other than in compliance with the Agreement;
- failures or technical malfunctions in Subscriber’s internet connectivity, website, systems or information technology infrastructure;
- any other circumstances beyond SDI’s reasonable control, including, without limitation, power outages, Internet delays, network congestion, ISP malfunctions, denial of service attacks, and viruses or other malicious code (unless SDI fails to implement commercially reasonable threat management solutions or the service level deficiency resulted from SDI”s failure to property update such solutions);
- a Force Majeure Event;
- any suspension or termination of Subscriber’s or any Authorized Users’ access to or use of the Services as permitted by the Agreement; or
- Scheduled Downtime as set forth below.
1.3 Scheduled Downtime. SDI shall use commercially reasonable efforts to give Subscriber at least twenty-four (24) hours’ prior notice of all scheduled outages of the Service (“Scheduled Downtime”) and will use commercially reasonable efforts to limit Scheduled Downtime to no more than twice per month, between the hours of 9:00 p.m. and 7:00 a.m., Eastern Time.
- Availability Credit. If the monthly Availability of the Service for Subscriber is below the Availability Requirement during a calendar month, Subscriber shall be eligible to receive a service credit equal to the applicable percentage of the Monthly Fee for that month (“Availability Credit”), as follows:
|Availability for Month||Availability Credit|
|95% - 99.8%||5% of Monthly Fee|
|90% - 94.9%||10% of Monthly Fee|
|80% - 89.9%||15% of Monthly Fee|
|50% - 79.9%||20% of Monthly Fee|
|Below 50%||50% of Monthly Fee|
“Monthly Fee” means 1/12 of the annual Fee for the Service.
To be eligible for the Availability Credit, Subscriber must notify SDI within 30 days after the end of the calendar month giving rise to the Availability Credit. Upon receipt of notification, SDI will perform the research necessary to verify whether Subscriber is entitled to the Availability Credit and will apply the appropriate amount to Subscriber’s next invoice.
3. SLA Exclusions and Limits. The remedies set forth in this SLA are Subscriber’s sole remedies for any and all unavailability, degradation or inoperability of the Service. Notwithstanding anything to the contrary in this SLA or otherwise in the Agreement, SDI will have no liability (including in respect of indemnification obligations or SLA obligations) under the Agreement arising out of or related to any Beta Features.
4. Technical Support Service Guidelines: Support Process. Requests for support will be classified and addressed in accordance with the descriptions set forth below. Subscriber shall notify SDI of support requests through the contact methods specified below. Subscriber must designate a maximum of 3 people to submit support requests and who are the designated people for SDI to contact when Subscriber’s input is required to resolve a support issue.
Severity of Issue
Description of Priority Characterization
Estimated Response Time
- Entire Service down or operating in materially degraded state;
- Data entry or access is prevented;
- Material financial impact; or
- Widespread access interruptions.
Subscriber contacts SDI
SDI will use commercially reasonable efforts to respond to Subscriber within 1 hour via email and will provide updates as necessary during normal business hours (i.e., between 9am-6pm Eastern, Monday through Friday, non-holidays).
- Major functions down or issues accessing account
Subscriber contacts SDI
SDI will use commercially reasonable efforts to respond to Subscriber within 4 hours via email and will provide updates as necessary.
Note: Estimated response times are applicable only to business hours (9am-6pm Eastern, Monday through Friday, non-holidays)
- Troubleshooting regarding basic account functionality; or
- Service is operating with issues that can be addressed with a work around.
Subscriber contacts SDI
SDI will use commercially reasonable efforts to respond within 1 business day via email and will provide updates as necessary.
Note: Estimated response times are applicable only to business hours (8am-6pm Eastern, Monday through Friday, non-holidays)
- Minor issues
- Request for assistance, information, or services that are routine in nature.
Subscriber contacts SDI
SDI will use commercially reasonable efforts to respond within 2 business days via email and will provide updates as necessary.
Note: Estimated response times are applicable only to business hours (8am-6pm Eastern, Monday through Friday, non-holidays)