Service Level Agreement

Last Updated: August 23, 2023

The terms and conditions set forth below (the “Service Level Agreement”) are incorporated into and made a part of the agreement between VMAccel, LLC (“VMAccel”), and the person or entity (“Customer”) identified in a document entitled “Statement of Work” or bearing a similar title duly executed by each party, or in the absence of such an executed document, the order placed by or on behalf of such party through an online portal provided by VMAccel  (in either case provided such document or order expressly references this Service Level Agreement as being a part thereof), pursuant to which VMAccel provides Customer with access to and use of compute infrastructure and/or software applications expressly identified therein as a “Platform” (the “SOW”).  No contract is formed pursuant to this Service Level Agreement other than pursuant to the SOW, and this Service Level Agreement does not apply and has no legal effect otherwise.  In the event of a conflict between the terms of this Service Level Agreement and the terms of the SOW, this Service Level Agreement shall control except to the extent the SOW expressly and specifically provides otherwise.  Capitalized terms used in this Service Level Agreement but not defined herein shall have the meanings ascribed in the SOW.

1. Availability
   1. Certain Definitions.

“Availability Target” means the Platform is Available 99% of the time, other than periods of Excused Outages, as measured over the course of any calendar month (or portion thereof with regard to a partial calendar month at the beginning or end of the SOW Term).

“Availability” means the percentage of a given monthly period that the Platform is Available.

“Available” means that the Platform is available for access and use by Authorized Users when accessed and used in accordance with the Documentation and the Environment Specifications, without a Severity 1 Issue that has not been addressed by a Reasonable Workaround.

“Excused Outage” means that the Platform is not Available (i) during Scheduled Maintenance, (ii) due to the failure, interruption, outage, or other problem with any telecommunications, software, hardware, system, network, or facility of Customer (or the third-party supplier of Customer) or otherwise not supplied by VMAccel pursuant to this Agreement; (iii) due to a Force Majeure Event; (iv) due to the negligent act or omission or willful misconduct of the Customer, its Affiliate, the respective employees, contractors, or agents of each, or any other party gaining access to the Platform due to any such negligent act or omission or willful misconduct, (v) for an Emergency Suspension, or (vi) pursuant to Customer’s request that VMAccel cease making the Platform Available.

“Hosting Service Credit” means a credit described in Section 2 below.

“Monthly Fee” means the fee for a Platform subscription due under the SOW attributable to a given month as to which VMAccel fails to meet the Availability Target (or prorated for a one-month period if such amount is expressed on a basis longer than monthly).

“Scheduled Maintenance” means maintenance, upgrades, or replacement of hardware, software, or telecommunications services or other such occurrences on or affecting the Platform, but only if (i) the foregoing occurs between 4:00 AM and 8:00 AM Mountain Time on Sundays, (ii) VMAccel has notified Customer thereof not less than 24 hours in advance and such event lasts no more than one hour, provided that such events occur not more often than once per week, or (iii) VMAccel has notified Customer in advance and Customer, in its sole discretion, has consented in writing (which may be in email) to the foregoing.  Any provision of this Agreement to the contrary notwithstanding, VMAccel may give the notices contemplated in this paragraph by means of a message posted to the Platform reasonably visible to Authorized Users thereof or by email or telephone to any of VMAccel’s principal technical contacts at Customer.

“Severity 1 Issue” means a Malfunction that renders a business-critical aspect of the Platform inoperative or practically unusable by more than one Authorized User.

2. Availability Service Credit. For each calendar month in which VMAccel fails to achieve the Availability Target, as Customer’s sole and exclusive remedy (other than as set forth in Section 3 below), upon the written request of Customer to VMAccel in reasonable detail by email to [email protected] within 30 days following such failure, a credit against the Monthly Fee (a “Hosting Service Credit”), may be applied by Customer to the next payment due under this Agreement as set forth in the table below.  Hosting Service Credits are not transferrable.

3. Termination. Without limiting Customer’s entitlement to any accrued Hosting Services Credits, in the event that (i) VMAccel fails to meet the Availability Target for any four months in a 12-month period, (ii) VMAccel fails to meet the Availability Target for three consecutive months, or (iii) the Platform is not Available at least 95% of the time, other than periods of Excused Outages, as measured over the course of any two consecutive months, Customer may terminate this Agreement without penalty upon notice to VMAccel within 45 days following the accrual of such right.

1. Support and Maintenance
2. Certain Definitions.

“Customer Support Contact” means a duly qualified and knowledgeable Authorized User identified to VMAccel by Customer to serve as a liaison between Customer and VMAccel for Platform support purposes; provided, however, that any such person shall be trained or otherwise approved by VMAccel; and provided, further, that no more than a reasonable number of such persons shall be designated at any given time.

“Problem Report” means a written report, submitted to VMAccel by Customer in accordance with VMAccel’s then-current procedures provided or made available to Customer, describing in reasonable detail a suspected Malfunction.

2. Support. VMAccel shall use reasonable efforts to provide to Customer’s Customer Support Contacts consultation and assistance with operational and technical support issues arising from use of the Platform by Authorized Users.  VMAccel shall provide such services during VMAccel’s normal business hours (currently 9:00 a.m. to 5:00 p.m. Mountain Time weekdays except business holidays observed by VMAccel) as promptly as is reasonably practicable based on priority determined in good faith by VMAccel pursuant to requests for support services submitted by telephone, email, or to a web portal at such telephone number, email address, and/or URL as VMAccel shall provide or make available to Customer from time to time.
3. Maintenance. In response to a Problem Report, VMAccel shall use reasonable efforts to correct a reported Malfunction or to provide a reasonable workaround sufficient to alleviate any substantial adverse effect of the problem on the utility of the Platform, provided that Customer assists VMAccel in its efforts by making available, as reasonably requested by VMAccel, information, documentation, access to personnel, and testing.