Hosted Service Policy

HOSTED SERVICE POLICY
This is the xMatters’ Hosted Service Policy (“Policy”). This Policy, along with any terms specified in an Order Form and/or an equivalent ordering document forms the complete agreement for provision and use of the Hosted Service.
(Updated August 6, 2019)

TERMS AND CONDITIONS

 

1. DEFINITIONS.
“Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Consulting Services” means the installation, implementation, training or other professional services provided hereunder by xMatters to Customer under a separately negotiated Statement of Work, Order Form, or other mutually executed ordering document for Consulting Services. For purposes of clarity, Consulting Services are optional, and Customer’s use of the Hosted Services does not require any Consulting Services.
“Content” means all text, data, images, code, material, and/or other content uploaded by Customer for distribution through the messaging functionality (email, voice mail, SMS/text/push notifications, and conference calling) of the Hosted Service.
“Confidential Information” has the meaning set forth in Section 11.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Data” means all Content and other data stored by Customer or any of its Affiliates in the Hosted Service, including the contact data of authorized Users.
“Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the Hosted Service.
“Documentation” means the description of the Hosted Service and related materials  generally available on the xMatters website for paid subscribers to the Hosted Service.
“Extension Term” means each renewal subscription period for which the subscription term applicable to an Order Form is extended pursuant to Section 13.
“Hosted Service” means the on demand, cloud-based software,  applications, application programming interfaces, and platform services provided by xMatters which is accessed via the Internet.
“Initial Term” means the first subscription term period for the Hosted Service defined on an Order Form, or if no such period is defined, twelve (12) months, commencing on the date Customer executes such Order Form or the effective date stated in an Order Form.
“Order Form” means an ordering document for the Hosted Service signed by xMatters and Customer.
“Statement of Work” means an ordering document for Consulting Services signed by xMatters and Customer.
“Subscription Fees” mean the fees paid by Customer for the right to access and use the Hosted Service and receive standard support during the Term.
“Support Policy” The current version of the Support Policy is published by xMatters at https://www.xmatters.com/policy/client-support/.
“System Availability” means the percentage of total time during which the Hosted Service is available to Customer and Customer is able to access the Hosted Service system interface.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Initial Term and each subsequent Extension Term, unless terminated in accordance with Section 13.2, applicable to each Order Form.
“Users” means Customer’s and its Affiliates’ employees, agents, contractors or consultants, each of whom are (i) a natural person; (ii) authorized by Customer to use the Hosted Service; and (iii)  supplied user identifications and passwords by Customer or by xMatters at Customer’s request. Users may not include distribution lists unless each recipient of the distribution list is also a User as defined herein.
“Work Product” means all work developed or created by xMatters for Customer during the course of providing Consulting Services to Customer pursuant to a Statement of Work. Work Product does not include any Customer Data or Confidential Information, or any Intellectual Property and/or title in and ownership by xMatters in the Hosted Service.

2. TERMS OF HOSTED SERVICE. xMatters shall make the Hosted Service available to Customer in accordance with this Agreement, the Documentation, and each mutually executed Order Form. Subject to the terms of this Agreement, xMatters grants Customer and its Affiliates a world-wide, fully-paid, royalty-free, limited term, non-sublicensable, non-transferable, and nonexclusive license to access and use the Hosted Service for Customer’s internal business purposes.

3. CUSTOMER RESPONSIBILITIES, REPRESENTATIONS, AND WARRANTIES RELATING TO USE OF THE HOSTED SERVICE.
3.1 Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services, including telephone, internet, and other connectivity services, needed to connect to, access or otherwise use the Hosted Service.
3.2  Customer represents and warrants that it will used the Hosted Service in compliance with all applicable law, including telecommunications, anti-spam, do-not-call laws, and all applicable privacy laws. Customer further represents and warrant that it will obtain all requisite permissions, consents, and authorizations to provide the Customer Data to the Hosted Service and shall maintain all such required permissions, consents, and authorizations during the applicable Term. Customer shall indemnify xMatters for any third-party claims arising out of Customer’s breach of this provision 3.2 as more fully set forth in Section 10 herein.
3.3 Customer shall be responsible for the accuracy of all Customer Data, including Customer Data consisting of employee contact information such as email addresses and telephone numbers. Customer further represents and warrants that it will maintain the accuracy of such Customer Data during the Term. Customer shall indemnify xMatters for any third-party claim arising from Customer’s breach of this section 3.3 as more fully set forth in Section 10 herein.
3.4 Customer shall be responsible for all Content sent through the Hosted Service. Customer acknowledges and agrees that the Hosted Service may not be used to transmit  (a) personal health information as defined under the Health Insurance Portability and Accountability Act; (b) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (c) financial account information, including bank account numbers; (d) payment card data, including credit card or debit card numbers; or (d) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense. Customer shall indemnify xMatters for any breach of this section 3.4 as more fully set forth in section 10.
3.5 Customer agrees that it shall not: (a) resell, sublicense, lease, time-share or otherwise make the Hosted Service available to any third party other than as contemplated by this Agreement; or (b) use the Hosted Service to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Customer shall indemnify xMatters for any breach of this section 3.5 as more fully set forth in Section 10.
3.6  Customer agrees to not (a) modify, copy or create derivative works based on the Hosted Service; (b) reverse engineer the Hosted Service; (c) access the Hosted Service for the purpose of building a competitive product or service or copying its features or user interface; (d) create Internet “links” to or from the Hosted Service, or “frame” or “mirror” any content forming part of the Hosted Service, other than on Customer’s or its Affiliates’ own intranets or otherwise for its or its Affiliates’ own internal business purposes; or (e) use the Hosted Service, for purposes of  benchmarking or other comparative analysis intended for publication without xMatters’ prior written consent.
3.7 The license granted hereunder is limited to the maximum number of Users stated in an Order Form (by type where applicable), the terms and conditions set forth herein, and any additional terms and conditions specified on an Order Form.  In the event Customer exceeds the number or the type of licensed Users, xMatters will inform the Customer and Customer must either correct such excess usage within fourteen (14) days or pay the additional Fees for such additional licenses.
3.8 All Customers and Users are subject to the xMatters’ policy on messaging scope and limits in effect as of the effective date of the then-current Initial or Extension Term. The current policy on messaging scope and limits is published by xMatters at https://www.xmatters.com/policy/message-rates/. In the event Customer exceeds the limits and scope of messaging, xMatters will inform Customer and Customer must correct such excess usage, pay any additional fees and costs associated with such excess messaging within fourteen (14) days, or xMatters has the right to terminate this Agreement immediately.
3.9 Customer represents and warrants that it has the power and authority to enter into this Agreement and perform its obligations hereunder.

4. CONSULTING SERVICES. Consulting Services will be provided on the terms set forth in a mutually executed statement of work or Order Form at the fees specified therein, and under the terms and conditions for any Work Product created thereunder.

5. OWNERSHIP.
5.1 As between the parties, xMatters shall retain all ownership rights in the Hosted Service, the technology, software, hardware, products, processes, algorithms, user interfaces and know-how related to the Hosted Service, in each case to the extent not constituting Customer Information (as defined below).
5.2 Customer shall retain all ownership rights in the Customer Data and all data, text, files, data, output, or other information material that Customer or its Affiliates provides, develops, generates, or creates in conjunction with the Hosted Service (collectively, “Customer Information”).
5.3 xMatters hereby grants Customer a royalty-free, fully paid-up, nonexclusive, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), license to use, copy, modify or distribute the Documentation for its internal business purposes during the Term.
5.4 No license, right or interest in any xMatters or Customer trademark, copyright, trade name or service mark is granted hereunder.
5.5  xMatters shall own any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Hosted Service.

6. FEES.
6.1 Unless otherwise specified on an Order Form, the Subscription Fees stated in each Order Form shall be effective during the Initial Term specified in that Order Form and Subscription Fees for the Initial Term and each Extension Term shall be payable in advance. If additional User subscriptions are added under an existing Order Form, the term of the additional User subscriptions shall be coterminous with the expiration of the Term applicable to such Order Form, If Customer does not cancel an  Order Form at least 30 days prior to the last day of the Term, the Order Form will automatically extend for the same duration as the previous order or extension.
6.2 All undisputed fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice. Any payment not timely received from Customer may result in suspension of Customer’s ability to access the Hosted Service until payment is received.
6.3 Unless otherwise provided, xMatters’ fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on xMatters’ net income or property. If xMatters has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Unless otherwise provided in a Statement of Work, Customer shall reimburse xMatters for all reasonable, pre-approved and appropriately documented, out-of-pocket travel and related expenses incurred by xMatters in performing Consulting Services at Customer’s location, in each case in accordance with Customer’s standard expense policy if provided to xMatters in advance of incurring such expenses. Customer shall be responsible for its own travel and out-of-pocket expenses associated with attending any training services at an xMatters facility.

7. SUPPORT. Provided Customer is current in payment of Subscription Fees due, xMatters shall provide support in accordance with the terms and conditions described in xMatters’ then current Support Policy. As long as this Agreement is in effect, the level of support shall not be materially less than that defined in xMatters’ Support Policy in effect as of the Effective Date. 

8. XMATTERS’ WARRANTIES.
8.1 xMatters represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all applicable laws in its performance hereunder.
8.2 xMatters warrants that the Hosted Service will perform in all material respects in accordance with the Documentation. As Customer’s sole and exclusive remedy and xMatters’ entire liability for any breach of the foregoing warranty, xMatters will fix, provide a work around, or otherwise repair or replace the nonconforming Hosted Service, or, if xMatters is unable to do so, terminate the license for the Hosted Service and return the Hosted Service Fees paid to xMatters for the period beginning with Customer’s notice of nonconformity through the remainder of the Initial Term or Extension Term, as applicable.
8.3 xMatters warrants that the Hosted Service will meet the Hosted Service System Availability level set forth in the Service Level Agreement (the “SLA”) in Schedule A. In the event of a breach of the foregoing warranty, as Customer’s sole and exclusive remedy, xMatters will provide the remedy set forth in the SLA.
8.4 The Hosted Service performance and System Availability warranties set forth in Sections 8.3 and 8.4 respectively, shall not apply to the extent any problem which results in the Hosted Service performance or System Availability to be other than as warranted is due to: (i) third party software, hardware or network infrastructure outside of xMatters’ third party hosted service provider; (ii) failure of the external internet beyond xMatters’ network; (iii) electrical or internet access disruptions; (iv) any actions or inactions of Customer in violation of this Agreement; (v) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties; or (vi) a Force Majeure event.
8.5 xMatters warrants that it will adhere to its privacy policy (https://www.xmatters.com/policy/privacy-policy/) in the collection, processing, and use of Customer Data.
8.6  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XMATTERS DOES NOT WARRANT THE OPERATION OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

9. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY.
9.1 xMatters shall defend, indemnify and hold Customer, its Affiliates and each of their respective officers, directors, employees (collectively, “Customer Group”), and agents harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against any member of Customer Group by a third party alleging that use of the Hosted Service as contemplated hereunder (i) violates any applicable law or regulation or (ii) infringes the intellectual property rights of such third party, provided Customer (a) promptly gives written notice of the Claim to xMatters (provided that the obligations under this Section 9.1 shall not be reduced by the failure to give such notice except to the extent xMatters is materially prejudiced by such failure); (b) gives xMatters sole control of the defense and settlement of the Claim (provided that xMatters may not settle any Claim unless it unconditionally releases Customer of all liability and obligation); and (c) provides to xMatters, at xMatters’ cost, all reasonable assistance.
9.2 xMatters will, at its sole option and expense: (i) procure for Customer the right to continue using the Hosted Service under the terms of this Agreement; (ii) replace or modify the Hosted Service to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Hosted Service and refund Customer all prepaid fees for the remainder of the then current subscription term after the date of termination.
9.3 xMatters shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Hosted Service in combination with any other
product, service or device not furnished or approved by xMatters, if such Claim would have been avoided by the use of the Hosted Service, without such product, service or device; or (ii) Customer’s use of the Hosted Service other than in accordance with this Agreement.
9.4 THE PROVISIONS OF THIS SECTION 9 SET FORTH XMATTERS’ SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

10. INDEMNIFICATION BY CUSTOMER.
Customer shall defend, indemnify and hold xMatters, its Affiliates and each of their respective officers, directors, employees (collectively, “xMatters Group”), and agents harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against xMatters any member of xMatters Group, by a third party alleging that the Customer Data and/or Content created and stored by Customer in the Hosted Service or otherwise provided to xMatters in connection with the Agreement (i) was not authorized, permitted, or consented to by the applicable third party data subject asserting a Claim; (ii) violates any applicable law or regulation; or (iii) infringes any patent, copyright or other intellectual property right of a third party; provided, that xMatters (a) promptly gives written notice of the Claim to Customer (provided that the obligations under this Section 10 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure); (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases xMatters of all liability and obligation); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

11. CONFIDENTIALITY.
11.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in Order Forms), Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
11.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). xMatters represents and warrants that it will maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Hosted Service or Consulting Services to Customer, provided, however, that xMatters may compile aggregate data related to xMatters Customers’ usage, as a group, of the Hosted Service and may disclose such aggregate data to third parties to the extent that Customer is not identified as the source of such data. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
11.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
11.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
11.5. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.

12. LIMITATION OF LIABILITY.
12.1 EXCEPT (i) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; OR (ii) EITHER PARTY’S MATERIAL BREACH OF SECTION 11 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE TO XMATTERS DURING TWELVE MONTHS PRIOR TO THE CLAIM.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. TERM AND TERMINATION.
13.1 This Agreement commences on the Effective Date and continues until all User subscription licenses granted in accordance with this Agreement have expired or been terminated. The Initial Term applicable to each Order Form commences upon the effective date of a mutually executed Order Form. If not cancelled at least 30 days prior to the expiration of the Term, the Hosted Service subscription term applicable to such Order Form shall automatically renew for an Extension Term equivalent to the previous Term.
13.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Upon any termination for cause by Customer, xMatters shall refund Customer any prepaid fees for the remainder of its subscription term after the date of termination.
13.3 The parties’ rights and obligations under Sections 5, 6, 8.5, 9-12, 13.3, and 14 shall survive termination of this Agreement.
13.4 Upon the effective date of termination of an Order Form or this Agreement, Customer’s license to use the Hosted Service will cease.

14. General
14.1 If Customer is a federal government entity, xMatters provides the Hosted Service, including related technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Hosted Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
14.2 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
14.3 Notices (including notices of non-renewal and termination) shall be in writing and delivered to the address(es) stated in an Order Form by nationally recognized overnight delivery service or certified or registered U.S. Mail, and are effective upon proof of delivery.
14.4 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and xMatters. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a statement of work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
14.5 Either party may include the other’s name or logo in Customer or vendor lists in accordance with the other’s standard guidelines.
14.6 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
14.7 Neither party shall be liable to the other for any delay or failure to perform hereunder due to a natural disaster, action or decree of governmental bodies, communications line failure, or other circumstance beyond the reasonable control of a party that (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) by the exercise of reasonable diligence such party is unable to prevent or provide against.  Majeure Event”).
14.8 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without consent of the other party, to its successor in interest resulting from a merger, reorganization, or sale of all or substantially all of its assets. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9 Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the provision and use of the Hosted Service.
14.10 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. Any dispute arising under this Agreement shall only be brought in the courts located in Contra Costa County, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

 

SCHEDULE A TO HOSTED SERVICE POLICY (“Agreement”)
Service Level Agreement

1. DEFINITIONS.

Except as otherwise modified or defined herein, all capitalized terms in this Schedule A have the same meanings as set forth in the Agreement. 

Delivery Provider” means a third-party service provider used to send notifications to the User such as SMS providers, telephony services (e.g., AT&T, BT, Telstra), push notification providers (e.g., Apple and Google), or email providers.

First Alert” means the first notification to the User assigned to review an initial alert for a new Event, provided that such notification must have been designated as “high priority” within the Hosted Service. Customers are responsible for ensuring correct and accurate contact information for each User to ensure that the Hosted Service is able to contact the User.  

Event” means the initiation of a trigger to the Hosted Service to notify one or more Users. Customers are responsible for ensuring a current non-deprecated method of event initiation is in use. 

 Service Credit” means the percentage of the pro-rated monthly Subscription Fees for the Hosted Service that is awarded to Customer for a validated claim related to breach of the Hosted Service System Availability warranty during that month.

2. SERVICE LEVELS

xMatters’ will use commercially reasonable efforts to meet the following service levels for the Hosted Service.  

Service Availability:  During any calendar month, xMatters will make the Hosted Service available for Customer access at these or greater levels of availability: 

99.90% xMatters Starter, Base and Engage
99.95% xMatters Advanced
99.99% xMatters Business Continuity Management (BCM)

Notification Delivery: For xMatters Base and Advanced products only, xMatters will deliver 99.9% of the First Alerts within five (5) minutes of an Event being triggered in any calendar month.  Time is measured from the moment the Event is triggered within the xMatters Hosted Service to the moment xMatters delivers a First Alert to the Delivery Provider in accordance with the configuration of the system and the Users contact profile.  xMatters is not responsible for delays caused by factors outside xMatters control including delays or failures of the Customer’s services, delays or failures of independent third-party Delivery Provider, Force Majeure Event or intentional or accidental filtering of network traffic by carriers or governments.   Customer will configure and use the Hosted Service correctly in accordance with the Documentation to be eligible for this SLA.  

3. SERVICE LEVEL CLAIMS 

In the event xMatters does not meet its Service Levels in any one calendar month, the Customer will be entitled to a Service Credit.  To file a claim with xMatters, Customers must notify xMatters within five (5) business days of the incident.  For purposes of the preceding sentence, a Customer may notify xMatters of an incident by initiating a Support Ticket in accordance with the Support Policy and, upon resolution of the incident, Customer may request a Service Credit. xMatters will use log files, database records, audit logs, and any other information available to validate claims and make a good faith judgment on the applicability of Service Credits to said incident. xMatters shall make information used to validate a Service Credit claim available for auditing by Customer at Customer’s request. The remedies set forth herein represent Customer’s sole and exclusive remedy for xMatters’ breach of the Hosted Service System Availability warranty defined in this Schedule A.

4. REMEDIES

If the Hosted Service Availability or Notification Delivery service levels are less than the percentages defined herein, xMatters will provide Customer with a Service Credit for the month in which the failure to meet this warranty has occurred. Service Credits are not available for xMatters Free, Starter or Engage products. The Service Credit will be calculated in accordance with the table below on a pro-rated monthly basis. If Customer submits one or more validated Service Credit claims under this warranty in each of three (3) consecutive calendar months, Customer may terminate the Agreement upon thirty (30) days written notice.

xMatters Service: Service

Availability SLA

Service

Availability Credit

Notification 

Delivery SLA

Notification

Delivery Credit

Base < 99.90%

< 99.50%

< 98.50%

10%

20%

30%

< 99.90%

< 99.50%

< 98.50%

10%

20%

30%

Advanced < 99.95%

< 99.50%

< 98.50%

10%

20%

30%

< 99.90%

< 99.50%

< 98.50%

10%

20%

30%

BCM  < 99.99%

< 99.50%

< 98.50%

10%

20%

30%

N/A N/A

5. SERVICE CREDITS

In any given month, Customer shall in no event be entitled to receive a credit that exceeds 100% of its monthly Subscription Fee. Service Credits may only be redeemed at time of renewal of the Agreement for an Extension Term. Upon Customer’s renewal of the Agreement for an Extension Term, Service Credits earned by Customer hereunder will be applied against Subscription Fees due for the Extension Term. If Service Credits cannot be applied to future Subscription Fees because the Agreement has expired or terminated or for any other reason, xMatters will promptly pay Customer the amount of the Service Credit.