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Service Level Guarantee. The Service will be available to its authorized Brands (“Clients”) and Retailers (each, a “User”) ninety nine and one half percent (99.5%) of the time, except as otherwise provided herein and in the Agreement (the “Service Level Guarantee”).

Calculation of Service Availability; Definitions. Service Availability means that Users are able to access Service provided by Promoboxx for 99.5% of the Available Time.

Downtime resulting from a third party service or API failure beyond the direct control of Promoboxx is excluded from Available Time. For example an external failure at Facebook, Twitter, other channel partners, etc.

Service Available Time will be calculated as follows for each calendar month that the Service is available to User under the Agreement:

“Total minutes” means the total number of minutes in the calendar month. “Downtime” means minutes during the month that the Service is not available (including Excluded Downtime). “Excluded Downtime” includes: (i) planned downtime minutes for the month, which shall be any period for which Promoboxx gives twenty-four (24) hours or more notice that the Service will be unavailable; (ii) unplanned maintenance outages required to respond to an identified security vulnerability or infrastructure-based error; and (iii) any unavailability caused by circumstances beyond Promoboxx’s reasonable control, including without limitation: (a) reasons of force majeure, (b) computer or telecommunications failures or delays involving hardware or software not within Promoboxx’s possession or reasonable control, (c) network intrusions or denial of service attacks, (d) a User’s information content or application programming, and (e) acts or omissions of a User or its agents.

Promoboxx may release new versions of the Service where functionality may be added to the Service. The deployment of these new releases can take several hours to complete and Promoboxx will notify User in advance of any planned downtime associated with such releases. Unavailability of some specific features or functions within the Service, while others remain available, will not constitute unavailability of the Service, so long as (i) the User is able to complete a Campaign, and (ii) the unavailable features or functions are not, in the aggregate, material to the Service as a whole.

Service Availability for all User accessible applications managed by Promoboxx on behalf of User shall be 99.5% or greater in any given month. Service Available Time is calculated as 100% minus Application Downtime, where Application Downtime consists of the total number of minutes per month that any User accessible application is unavailable to users for 15 or more consecutive minutes, divided by the number of available minutes in such month, which excludes planned downtime as calculated by:

Available Time = Scheduled Up Time – (Planned Down Time + Unplanned Down Time)

SLA% = (Available Time / (Scheduled Up Time – Planned Down Time)) * 100

If the cause of the Service Unavailability cannot be identified or is disputed by Promoboxx, a joint review will be held with the User, and any other 3rd party partners involved (if necessary) to mutually agree on appropriate allocation of the unavailability responsibility to the appropriate party. The Service Unavailability Tracking Process shall be a combination of automated tools and manual processes as mutually agreed between Promoboxx and the User. The service availability data shall be made transparently available to both parties.

In the event that the Promoboxx User accessible applications has an availability of less than 99.5% in any given month, the User is eligible to receive a Service Availability Credit from Promoboxx as defined in the table attached below. The amount of the Service Availability Credit shall be based on the value of the current Monthly Platform fee as agreed upon by Promoboxx and the User.

If applicable, the Service Availability Credit shall be provided to User in 10 business days or less following the month in which the Service Availability incident(s) have occurred. The Credit shall be made against the Purchase Order and/or Account that normally provides payment for the affected User accessible applications, and a copy of the credit memo shall also be provided to the User business representative and to the User Purchasing representative.

Service Credit/Remedies. If actual Service Availability for the Site and the Service in a given calendar month is less than the Service Level Guarantee, User will receive a service credit equal to a percentage of the monthly platform subscription fee for such month in accordance with the following table:

Service Availability Greater than or Equal To: Service Availability Less Than: Service Availability Credit (Percentage of Monthly Platform Subscription Fee)
97% 99.5%  10%
95% 96.9%  15%
92% 94.9%  20%
85% 91.9%  25%
75% 84.9%  50%
 0% 74.9% 100%

The remedies set forth in the table above shall be the sole and exclusive remedy of User, and Promoboxx’s entire liability, for a failure to meet the Service Level Guarantee.

Reporting and Claims. Within fifteen (15) days following the end of a calendar month in which Promoboxx fails to meet the Service Level Guarantee, upon a User’s written request, Promoboxx shall provide User with a written report of the total number of unplanned downtime minutes for such month along with a calculation of the corresponding service availability credit for such month. To dispute such report or to file a claim for a service level fee reduction, User must send an email to (or such other address designated in writing by Promoboxx) with the following details within thirty (30) days of the end of the month for which a claim is made: (i) billing information, including User name, billing address, billing contact and billing contact phone number; (ii) downtime information with dates and time periods for each instance of downtime during the relevant period; and (iii) an explanation of the claim made under this Agreement, including any relevant calculations. All claims will be verified against Promoboxx service records. Should any periods of downtime submitted by the User be disputed, Promoboxx will provide the User with a record of Service Availability for the period in question. In addition, for any month Promoboxx fails to meet the Service Level Guarantee, Promoboxx will: (i) perform an analysis to identify the causes of such failure; (ii) provide User, via Promoboxx’s standard mechanism for communicating with its customer base, with a written report of the results of such analysis and the procedure for correcting the failure; and (iii) keep User informed, via Promoboxx’s standard mechanism for communicating with its customer base, of the status of Promoboxx’s remedial efforts with respect to such failure.

Promoboxx, Inc. 500 Harrison Avenue, Suite 3R Boston, MA 02118