Observe.ai shall provide Customer with 99.0% availability to the Service (the “Service Availability”); and (ii) provide email support for the Service to Customer on a 8x5x252 basis (“Service Support”). Service Support shall only include assistance with issues which are exclusively due to an error with the Service (i.e., a failure of the Service to conform to the written specifications provided by Observe.ai). Any support outside the scope of Service Support shall be provided by Observe.ai on a time and materials basis. The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime resulting from outages of third party connections or utilities or other reason beyond Observe.ai’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Observe.ai employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Observe.ai’s possession or reasonable control, and denial of service attacks).
An “Error” means an error in the Services which significantly degrades the Services as compared to Observe.ai’s published performance specifications. For each Error reported by Customer, Observe.ai shall (i) assign a priority level to such Error in its discretion in accordance with the table below, and (ii) respond to Customer and provide status updates in accordance with the time periods set forth in the table below.
If (i) the Service is unavailable to Customer due to defects with the Service beyond the Service Availability metric, or (ii) Observe.ai fails to respond to a Customer Error report within the allotted time frame, then, as Customer’s sole and exclusive remedy (and Observe.ai’s sole liability), (a) for each full hour in a month that the Service is unavailable beyond the Service Availability metric and (b) for each such response failure, Observe.ai will credit Customer with one (1) day of free access to the Service. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of one (1) free month of access to the Services. Further, Observe.ai will not grant a credit for any period in which Customer received any Services free of charge. Observe.ai’s blocking of data communications in accordance with its policies shall not be deemed to be a failure of Observe.ai to provide adequate service levels under this Agreement.
In order to receive service credits, Customer must notify Observe.ai in writing within seventy-two (72) hours from the time of downtime or response failure (as applicable), and failure to provide such notice will forfeit the right to receive downtime credit.
