SERVICE LEVELS, MAINTENANCE AND SUPPORT AGREEMENT
- CATEGORIZATION OF ERRORS AND DEFINITIONS
KNIGHT WEB SERVICES® INC. categorizes all service level disruptions experienced by CUSTOMER according to their severity and its impact on CUSTOMER’s operations. All capitalized terms not defined in this Schedule D will have the meaning ascribed thereto in Section 1.01 of this Agreement. For the purposes of this Schedule D, the following terms will have the following meanings:
- “99.4% Critical Services Uptime Guarantee” means that KNIGHT WEB SERVICES® INC. guarantees that Down Time with respect to the Critical Services shall not exceed six tenths of a percent (0.6%) of the time during a consecutive three (3) month period (computed by reference to a 31 day month), such three (3) month period to begin on the first day of each month.
- “Affected Critical Services Amount” means an amount equal to the amount that CUSTOMER has paid, or is payable, to KNIGHT WEB SERVICES® INC. for Critical Services that were unavailable as a result of Down Time during the month in which Down Time occurred.
- “Closed Source Applications” means ASP, ASP.NET, ColdFusion, ColdFusion MX, JSP, MivaMerchant, Real Server and StoreSense applications.
- “Critical Services” means the email services, web hosting services, DNS services, and the KNIGHT WEB SERVICES® INC. network to the extent that such services do not include Closed Source Applications.
- “Critical Fault” means an emergency condition causing a critical impact to the KNIGHT WEB SERVICES® INC. System whereby no less than 20% of End-Users cannot use the Critical Services.
- “Down Time” means periods of time that the Critical Services are not functional and available to End-Users and does not include any period of time during which services are not functional or available as a result of:
- Emergency System Maintenance or Permitted Scheduled Maintenance performed by KNIGHT WEB SERVICES® INC.;
- third party intrusions, including without limitation denial of service or similar attacks;
- downtime resulting from misuse by End-Users
- errors or non-performance of third-party software, including without limitation, Closed Source Applications; or
- any event that is not within KNIGHT WEB SERVICES® INC.’s control.
- “Emergency System Maintenance” means unscheduled Maintenance performed outside of Maintenance Windows in order to keep the KNIGHT WEB SERVICES® INC. System and Services
- “Maintenance” means the data backups, computer hardware maintenance, network hardware maintenance, installation of software updates and fixes as supplied by the manufacturers of the computer and network hardware used by KNIGHT WEB SERVICES®INC., and any such other tasks as required to operate the
KNIGHT WEB SERVICES® INC. System or Services in accordance with KNIGHT WEB SERVICES® INC.’s requirements and obligations in this Agreement.
- “Maintenance Windows” mean historically determined periods of minimal overall activity on the KNIGHT WEB SERVICES® INC. System, chosen to least impact CUSTOMER and End-Users, generally being between the hours of 2 A.M. to 6 A.M. EST or EDT New York as applicable.
- “Minor Fault” means any service problem which is not a Critical Fault or a Non-Critical Major Fault which affects no less than 20% of End-Users and includes, without limitation, a failure that can be easily avoided or circumvented by CUSTOMER and is not critical to the use of the KNIGHT WEB SERVICES® INC. System or Services, including the following, by way of example and without limitation:
- Hosting URL does not appear in WebsiteOS;
- Image in support page does not appear;
- Link to a KNIGHT WEB SERVICES® INC. document does not function;
- WebhostOS statistics cannot be displayed;
- WebsiteOS plug-in script does not function;
- WebhostOS does not accept new entries; or
- Webmail “To Do” list does not appear.
- “Non-Critical Major Fault” means a failure of a component of the KNIGHT WEB SERVICES® INC. System which prevents no less than 20% of End-Users from making any alterations to the email or web services. Non- Critical Faults will be limited to the unavailability of the following to CUSTOMER (or End-User in the case of WebsiteOS):
- WebsiteOS;
- WebhostOS; or
- RRAD.
- “Permitted Scheduled Maintenance” means Maintenance provided during Maintenance Windows for which advance notice has been provided.
- “Trouble Tickets” means the electronic notifications created and logged in a database by KNIGHT WEB SERVICES® INC. support staff technicians and include identifying information (End-User name, End-User Site affected, status, severity of problem, primary support staff technician, End-User contact and an initial assessment of the problem) designed to monitor and remedy a problem experienced by the End-User.
- SERVICE LEVELS, CREDITS AND REMEDIES
KNIGHT WEB SERVICES INC. shall use commercially reasonable efforts to provide all Services in accordance with the following service levels, subject to Section 3 below:
- SERVICE UPTIME. KNIGHT WEB SERVICES® INC.’s target uptime for the Service is 99.9% of the time in every calendar month and KNIGHT WEB SERVICES INC. provides CUSTOMER with a 99.4% Critical Services Uptime Guarantee as defined herein. If KNIGHT WEB SERVICES® INC. fails to meet the 99.4% Critical Services Uptime Guarantee, CUSTOMER will be entitled to receive a credit in accordance with the Service Level Credit Table below if:
- CUSTOMER applies for the credit within sixty (60) days of the last day of the month in which the 99.4% Critical Services Uptime Guarantee was not met, and
- no less than 20% of End-Users are affected. Such credits may be deducted from amounts otherwise payable by CUSTOMER to KNIGHT WEB SERVICES® INC. hereunder.
In addition, KNIGHT WEB SERVICES® INC. shall:
- remedy all Critical Faults within forty-eight (48) hours of the report of such failure by CUSTOMER. If KNIGHT WEB SERVICES® INC. is unable to correct the Critical Faults within seven (7) business days of being notified by CUSTOMER, CUSTOMER shall have the right to terminate this Agreement or receive a 100% refund of the current month’s fees;
- use commercially reasonable efforts to remedy all Non-Critical Major Faults within five (5) business days of being notified by CUSTOMER of the failure; and
- use commercially reasonable efforts to remedy all Minor Faults within fourteen (14) business days of being notified by CUSTOMER of the failure.
| Service Level Credit Table | Availability Discount Available |
| 99.01 – 99.40 | 10% of Affected Critical Services Amount |
| 98.01 – 99.00 | 20% of Affected Critical Services Amount |
| 97.01 – 98.00 | 30% of Affected Critical Services Amount |
| 96.01 – 97.00 | 40% of Affected Critical Services Amount |
| 95.01 – 96.00 | 50% of Affected Critical Services Amount |
| 94.00 – 95.00 | 60% of Affected Critical Services Amount |
- SERVICE LEVEL DISCLAIMER
- CUSTOMER acknowledges that KNIGHT WEB SERVICES® INC. does not control the Internet; accordingly, the test environment for the purpose of determining compliance shall be the KNIGHT WEB SERVICES® INC. network
- KNIGHT WEB SERVICES® INC.’s employees shall be responsible for problem investigation and will provide a written response to CUSTOMER explaining the results of their investigation. In the event there is a dispute of findings, KNIGHT WEB SERVICES® INC. reserves the right to make the final decision on whether credits will be provided to CUSTOMER.
(c) CUSTOMER acknowledges that although KNIGHT WEB SERVICES® INC. will use all commercially reasonable efforts in its development process to avoid programming errors, it does not represent or warrant that the operation of the KNIGHT WEB SERVICES® INC. System or Services will be Error free or that the operation of the KNIGHT WEB SERVICES® INC. System or Services will not be interrupted by reason of defect therein. KNIGHT WEB SERVICES® INC. shall, however, during the term of this Agreement, correct any defects and make any modifications which are necessary to cause the KNIGHT WEB SERVICES® INC. System or the Services to conform in all material respects to the performance specifications set out herein.
- MAINTENANCE
- KNIGHT WEB SERVICES INC.’s Obligations:
- In the absence of a CUSTOMER Event of Default, KNIGHT WEB SERVICES® INC. shall use commercially reasonable efforts to:
- provide Emergency System Maintenance or Permitted Scheduled Maintenance, where required;
- if possible, provide notice prior to performing Emergency System Maintenance;
- initially respond to any request from CUSTOMER for Emergency Maintenance Services within two (2) hours of receipt of such request; and
- supply CUSTOMER with all updates, improvements, modifications enhancements to the Software, without charge.
- Notwithstanding any other provision in this Agreement to the contrary, KNIGHT WEB SERVICES®INC. reserves the right, in its discretion, to perform any Emergency System Maintenance when necessary.
- KNIGHT WEB SERVICES® INC. shall consult with CUSTOMER to review End-User usage levels of the KNIGHT WEB SERVICES® INC. System and to discuss any potential changes in needs or functionality of the\Software.
- CUSTOMER’s Obligations:
- CUSTOMER understands and acknowledges that in order for KNIGHT WEB SERVICES® INC. to perform Maintenance, CUSTOMER shall:
- designate one technical contact and one primary contact (collectively, the “Designated Contacts”) who shall be authorized to request and receive Maintenance on behalf of CUSTOMER;
- notify KNIGHT WEB SERVICES® INC. in writing if it replaces or removes its Designated Contacts;
- co-operate fully with the reasonable requests of KNIGHT WEB SERVICES® INC. for information, personnel and time necessary to provide the Maintenance;
- provide KNIGHT WEB SERVICES® INC. with all information and assistance reasonably require by KNIGHT WEB SERVICES® INC. to detect, reproduce and correct Errors; and
- complete proper problem investigation procedures as reasonably specified from time to time by KNIGHT WEB SERVICES® INC. and perform such procedures and take remedial actions as KNIGHT WEB SERVICES® INC. may reasonably request.
- SUPPORT SERVICES
- Support Description
- KNIGHT WEB SERVICES® INC. shall provide helpdesk webhosting and email support services to End-Users or CUSTOMER via a toll free line, online chat and email, in the absence of a CUSTOMER Event of Default, seven (7) days a week, twenty-four (24) hours a day, fifty-two (52) weeks a year, inclusive of all federal, state, provincial, municipal and other statutory holidays observed in either the United States or Canada.
- Extent of Support Services
- KNIGHT WEB SERVICES® INC. shall support the applications currently included in KNIGHT WEB SERVICES® INC.’s WebsiteOS, web mail, and personal mail interfaces.
- KNIGHT WEB SERVICES® INC. shall not:
- support applications during beta testing;
- resolve coding problems;
- be responsible for problems with Third-Party Software, including but not limited to web page development, software or E-commerce programs; or provide Optional First-Tier or Second-Tier Support Services in any other language other than English unless an arrangement has been made with KNIGHT WEB SERVICES® INC.
- KNIGHT WEB SERVICES® INC.’s Optional First-Tier Support Services Obligations:
- KNIGHT WEB SERVICES® INC. will use commercially reasonable efforts to provide technical support services within a reasonable on hold time.
- CUSTOMER’s Support Service Obligations:
- CUSTOMER understands and acknowledges that in order for KNIGHT WEB SERVICES® INC. to provide Support Services, CUSTOMER shall:
- designate an individual who shall be authorized to request and change call center services on behalf of CUSTOMER (“Call Center Representative”).
- notify KNIGHT WEB SERVICES® INC. in writing if it replaces or removes its Call Center Representative;
- co-operate fully with the reasonable requests of KNIGHT WEB SERVICES® INC. for information, personnel and time necessary to provide Support Services; and
- complete proper problem investigation procedures as reasonably specified from time to time by KNIGHT WEB SERVICES® INC. and perform such procedures and take remedial actions as KNIGHT WEB SERVICES® INC. may reasonably request.
- Escalation Procedures
If Support Services employees are unable to resolve the CUSTOMER’s or End-User’s problem, a Trouble Ticket shall be created whereby a systems administrator will use commercially reasonable efforts to resolve the Trouble Ticket within twenty-four (24) hours. Qualified KNIGHT WEB SERVICES® INC. employees shall promptly respond to Trouble Tickets issued. Such employees will isolate specific problems, errors and defects and correct such defects in the Software, which interfere with its functionality.
If the Trouble Ticket is not resolved within twenty-four (24) hours, the Trouble Ticket will be escalated to the Technical Support Supervisor.
If the Trouble Ticket is still open beyond forty-eight (48) hours the Trouble Ticket will be escalated to the Assistant Manager or Technical Support Manager for investigation.
If the Trouble Ticket is still unresolved beyond four (4) days the Trouble Ticket shall be escalated to the Director of Operations, and Vice-President of Technology for investigation and resolution.
Notwithstanding the foregoing, CUSTOMER shall be entitled to escalate a Trouble Ticket to the Director of Operations, and Vice-President of Technology at any time.