“External Service”: Any software used by Firsthand in connection with the provision of the Service which is administered by a third-party. External services include, but are not necessarily limited to, the following: DNS servers, hosting providers, email servers, and the like.
“Unavailable”: the Service is unavailable if the Licensee is unable to access it.
“Monthly Uptime Percentage”: Calculated by subtracting from 100% the percentage of total number of minutes during the month in which the Service is Unavailable, except where such unavailability results from the causes listed in the Exclusions section below.
“Planned Downtime”: Planned Downtime is any instance where Firsthand intentionally causes the Service to be Unavailable, provided that (i) such instance is done for purpose of reasonably updating, upgrading or maintaining the Service or its underlying infrastructure (for example, without limitation, operating system upgrades, hardware repairs, database backups, data center moves, or the like); (ii) such instance occurs outside of normal business hours (9am — 5pm U.S. Eastern Time Monday — Friday, U.S. Federal holidays excluded); and (iii) in each such instance, Firsthand uses all reasonable efforts to provide notice to Licensee at least 48 hours in advance.
“Service Credit”: A service credit is a credit to be applied to Licensee’s next payment of Fees. These credits will be awarded in one (1) day increments.
Service Credits will not be awarded in the event of any of the following:
- Unavailability attributable to an External Service.
- Unavailability attributable to Licensee’s equipment, software or network.
- Planned Downtime, provided, that Firsthand shall ensure that there are no more than 4 instances of Planned Downtime during any thirty day period.
- Any Unavailability caused by actions of Licensee or Licensee’s personnel or agents, unless that action was undertaken at the express direction of Firsthand or Firsthand’s personnel or agents.
- Unavailability attributable to general Internet services (e.g. DNS, internet backbone, etc.).
- Unavailability caused by force majeure circumstances (e.g., fires, floods, acts of God, acts of government, civil unrest, Internet service provider failures or delays, denial of service attacks, etc.).
Service Commitments and Credits
Licensee may receive Service Credits by providing a written request to Firsthand no later than 30 days after the last day of the month during which the Unavailability for which such Service Credits are being applied occurred. Service Credits will be redeemed for a pro-rata credit applied to Licensee’s next payment of Fees, with such credit equal to the number of Service Credits awarded to Licensee during the then-current term of Licensee’s subscription divided by the number of calendar days in the Renewal Term for which Licensee is paying Fees.
If the Monthly Uptime Percentage is less than 99.5%, 5 Service Credits will be awarded.
If the Monthly Uptime Percentage is less than 99.0%, 10 Service Credits will be awarded.
If Licensee is awarded more than 15 Service Credits in a 90 day period, Licensee may, notwithstanding anything to the contrary in the Agreement, terminate this Agreement immediately for cause by providing written notice to Firsthand.