In addition to the General Terms and the other terms and conditions in the Agreement (as defined in the Hosting Agreement Summary), these Service Terms (the “Hosting Service Terms”) govern the Hosting Services. Capitalized terms used but not defined in these Hosting Service Terms will have the meanings given them elsewhere in the Agreement.
1. CONFIGURATION. Client represents and warrants that it has fully and accurately disclosed to Logicworks in writing all of Client’s capacity, performance, security, regulatory, backup, high availability, disaster recovery (e.g., RPO and RTO), and scalability needs for the Configuration. Client is responsible for the results of implementing any recommendations made by Logicworks and for requesting all required upgrades and modifications to the Configuration, including those required to address one or any combination of the following: (A) a spike or change in system resource utilization; (B) processing requirements; (C) storage requirements; (D) software deprecation; and (E) a change in Client Laws.
2. BACKUPS. If Client purchases backup Services, Logicworks will schedule nightly data backups of Client’s Servers to a primary backup Server. Data on the primary backup server will be replicated to a secondary backup Server off-site. The aggregate amount of available backup storage, as specified by Client, will be specified in a Service Order. Client shall maintain sufficient backup storage to accommodate at least two restore points and, if Client’s backup storage requirements exceed the allotment specified on a Service Order, Client shall pay backup overage fees. Logicworks may also require Client to use a backup agent or to dump a database to a local filesystem prior to backup. Client acknowledges that Logicworks is not responsible for backing up open files and that Logicworks does not guarantee that all attempted backups will be successful. Logicworks will reinitiate failed backups in accordance with the Responsibility Matrix. Client shall independently create and maintain on its own premises a current backup copy of all Content stored on the Servers. Clients with Dedicated Backup Servers, defined as servers specifically used for backing up Client data, are responsible for purchasing additional Dedicated Backup Servers at alternate Logicworks Datacenter Facilities and configuring replication in order to achieve off-site backups. Client’s sole remedy for Logicworks’ failure to restore any data as required by this Agreement will be a Service Credit provided in accordance with Section 6(f) below.
3. MAINTENANCE. “Maintenance” means modifications, upgrades, patching or repairs made to the Configuration or Datacenter Facilities, or the relocation of Client’s Servers within or between Datacenter Facilities. Logicworks may perform Maintenance on at least twenty-four hours’ notice between the hours of 12:00 a.m. and 6:00 a.m. at the location where the Maintenance is being performed (a “Maintenance Window”), or at any time scheduled by the parties. Notwithstanding the foregoing, Logicworks may perform “Emergency Maintenance”, which is Maintenance that is required to maintain the security or performance of the Configuration, Datacenter Facilities, or Logicworks’ network, at any time, as needed, and without prior notice. All or part of the Services may be unavailable while Maintenance or Emergency Maintenance is performed.
4. PATCHING. OPERATING SYSTEMS. Logicworks will review newly released Windows operating system (“O/S“) patches upon receiving notice of their release from the respective vendor(s) to determine, in its commercially reasonable judgment, whether any O/S patches in the release will protect against remote root-level or remote administrative exploits (“Critical O/S Patches”). Logicworks has the right to install Critical O/S Patches regardless of whether those Critical O/S Patches interfere with the Services or any Content. Logicworks will coordinate with Client for the application of all O/S patches, including Critical O/S Patches, as Maintenance, except that Logicworks may also apply Critical O/S Patches as Emergency Maintenance as needed to address a reasonably perceived imminent threat to the health or security of the Configuration, Logicworks’ network or its other clients. Critical O/S Patches will be applied on an as-needed basis and all other patches will be applied on a quarterly basis. If Client requires any O/S patch to be applied prior to the time that Logicworks would normally apply that patch, Client shall submit a support request through Logicworks’ ticketing portal requesting the patch. Client may not unreasonably withhold its approval of any patch.
(a) DATABASE PATCHING. For Clients who purchase managed database Services on a Service Order, Logicworks will patch database applications (e.g., Oracle, SQL, etc.) (“D/B”); provided, however, that Logicworks and Client have jointly reviewed the patch or Client has requested application of the patch by submitting a service request through Logicworks’ ticketing portal. Logicworks will not patch any database unless Client has purchased managed database Services for the respective database Server(s). If Client requires any D/B patch to be applied and it has not been notified of the patch by Logicworks, Client shall submit a support request through Logicworks’ ticketing portal requesting the patch.
(b) GENERAL PATCHING TERMS. Logicworks will not, by default, apply all patches that are released by O/S and D/B vendors, even if the vendors designate them as “critical” or use a similar term for their designation. Logicworks does not guarantee that it will identify all patches that will protect against remote root-level or remote administrative exploits. All patches applied by Logicworks will be applied “AS-IS”. If Client wishes to test a patch before it is applied to a live production environment, Client shall submit a service request designating which Server(s) in the Configuration will be used for testing. Once Client agrees in writing to any Professional Services that may apply, Logicworks shall install the patch on the designated Server(s). Client shall be solely responsible for testing and approving all patches. Logicworks will not patch deprecated software (e.g., O/S and D/B software that is designated by its respective vendor to be “end of life”, “EOL”, “no longer supported” or with a similar designation) or Client-supplied O/S and D/B software. The patching of custom-compiled software packages is not included within Logicworks’ Services, but may be provided as Professional Services. Inactive Virtual Servers will not be patched.
5. CUSTOM DEVICES. Client may include “Custom Devices” in the Configuration, which are devices that Logicworks does not keep in stock (e.g., dedicated Isilon and VNX devices). Logicworks shall obtain hardware replacement support for the duration of the Committed Term and any Renewal Term from each respective custom device vendor to the extent it is commercially available.
6. SERVICE LEVEL AGREEMENT. This Section 6 sets forth the Service Level Agreement (the “Service Level Agreement” or “SLA”), which includes Client’s sole remedy for Logicworks’ failure to provide the Services. Client is solely responsible for providing accurate and current contact information for the purposes of this SLA. Client will not be eligible for Service Credits for Downtime or any other failure, including any delay in restoring the Services, resulting from Client’s failure to provide current and accurate contact information.
(a) HIGH AVAILABILITY SOLUTION. A “High Availability Solution” is a group of redundant devices in a single Datacenter that perform the same function within the Configuration and use failover, load balancing or clustering in order to maintain availability if one device in the group fails. Subject to the exceptions set forth in this SLA, Logicworks guarantees that a High Availability Solution will be available one-hundred percent of the time after it has been successfully tested by Logicworks for reliability and proper failover (the “High Availability Guarantee”). Subject to the applicable limitations and conditions in this SLA, for the time during which the Services are unavailable due to a breach by Logicworks of the High Availability Guarantee (“Application Downtime”), Client will be entitled to a Service Credit equal to ten times the result of multiplying: (1) the total monthly Recurring Fee; by (2) a fraction, the numerator of which is the total number of minutes of Application Downtime that occur in a given calendar month and the denominator of which is the total number of minutes in that month. The Application Guarantee does not include the time required to complete manual failover (up to one hour) or Client-defined response procedures, and it is not a guarantee against the failure of an individual device. The outage of one of one or more devices in a High Availability Solution will not be counted against the High Availability Guarantee or qualify as Downtime provided that failover is successful and availability is provided by the other device(s). Client may request or otherwise use a High Availability Solution in a live Configuration prior to testing it for reliability and failover, but the High Availability Guaranty will not apply until the testing is scheduled by Client and successfully completed. Until testing is scheduled and completed, Client’s sole remedy for the failure of a High Availability Solution will be Service Credits that are made available, if any, pursuant to Section 6(b) (Hardware and Network Devices).
(b) HARDWARE. Subject to the exceptions set forth in this SLA, Logicworks guarantees that each instance of Repair Time for a failed Hardware component in the Configuration will not exceed one hour (the “Repair Time Guarantee”). “Repair Time” means the elapsed time between the Network Operations Center’s (“NOC”) diagnosis of the cause of the Hardware failure and the time at which a functional replacement is installed. Repair Time does not include the time required to format or reformat disks or a RAID array, the time required to load, reload, configure or reconfigure an operating system or the time required to load, reload, configure or reconfigure applications. Subject to the applicable limitations and conditions in this SLA, Client will be entitled to a Service Credit for each individual breach by Logicworks of the Repair Time Guarantee that is equal to: (1) the Recurring Fee for the failed Hardware component; multiplied by (2) a fraction, the numerator of which is the number of minutes that the Repair Time exceeded one hour in a calendar month (“Hardware Downtime”) and the denominator of which is the total number of minutes in that month.
(c) CUSTOM ORDER DEVICES. Subject to the exceptions set forth in this SLA, Logicworks guarantees that each instance of Vendor Repair Time for a failed Custom Device (as defined above) in the Configuration will not exceed one hour (the “Custom Repair Guarantee”). “Vendor Repair Time” means the elapsed time between the delivery of a functional replacement part or a substitute Custom Device to the Datacenter in which the failed Custom Device is located and the time at which the part is installed or the substitute Custom Device is connected to the Configuration. The Custom Repair Guarantee does not include the time required for a vendor to perform repairs, the time required to format or reformat disks or a RAID array, the time required to load, reload, configure or reconfigure an operating system or the time required to load, reload, configure or reconfigure applications. Subject to the applicable limitations and conditions in this SLA, Client will be entitled to a Service Credit for each individual breach by Logicworks of the Custom Repair Guarantee that is equal to: (1) the Recurring Fee for the failed Custom Device; multiplied by (2) a fraction, the numerator of which is the number of minutes that the Vendor Repair Time exceeded one hour in a calendar month (“Custom Device Downtime”) and the denominator of which is the total number of minutes in that month.
(d) DATACENTERS. Subject to the exceptions set forth in this SLA, Logicworks guarantees that the Configuration will have electrical power one hundred percent of the time and that the temperature and humidity in any Datacenter in which the Configuration is located will not deviate from industry-standard norms (the “Datacenter Guarantee”). If Logicworks fails to meet the Datacenter Guarantee, then subject to the applicable limitations and conditions in this SLA, for any period of time during which that failure causes the Configuration to be unavailable (“Datacenter Downtime”), Client will be entitled to receive a Service Credit equal to: (1) the monthly Recurring Fee for the unavailable portion of the Configuration; multiplied by (2) a fraction, the numerator of which is the total number of minutes of Datacenter Downtime that occur in a given calendar month and the denominator of which is the total number of minutes in that month.
(e) BACKUPS. Client’s sole remedy for a breach by Logicworks of its backup obligations under this Agreement will be a Service Credit equal to Client’s monthly recurring backup fee for a device that cannot be restored from backup.
(f) PATCHING. If Logicworks materially fails to meet its patching obligations under Section 4 (Patching) and that failure has an adverse effect on Client, Client’s sole remedy will be a Service Credit equal to $250 for each material failure.
(g) SERVICE CREDIT EXCEPTIONS. Logicworks is not responsible for, and Client is not entitled to Service Credits for, Downtime or any unavailability or adverse effect on the Services resulting from any monitoring or alerting failure or delay to the extent the failure or delay is caused by: (1) Client’s failure to provide Logicworks with accurate and current contact information, (2) Client-defined response procedures, (3) third parties over whom Logicworks has no control; or (4) a force majeure event. In addition, Logicworks is not responsible for, and Client is not entitled to Service Credits for, any unavailability or adverse effect on the Services resulting from the failure or delay of any monitor or alert that has not been jointly configured and successfully tested for reliability by both parties. Logicworks is not obligated to conduct any monitoring that requires custom programming or scripting.
(h) SERVICE CREDIT LIMITATIONS. ELECTION OF CREDITS. In no event will the same incident result in more than one type of Service Credit. Where Application Downtime is caused by or occurs simultaneously with Datacenter Downtime, Client’s sole available remedy will be Service Credits for Datacenter Downtime unless the High Availability Solution has been successfully configured and tested to remotely fail over to redundant portion of the Configuration in a geographically distant Datacenter. In all other instances, Client may elect which resulting Service Credit will apply when the same incident gives rise to more than one type of Service Credit.
(i) CUMULATIVE AMOUNT. The maximum combined amount of all Service Credits earned in a given calendar month (for Downtime or any other reason) may not exceed the Recurring Fee for the calendar month in which the Service Credits are awarded. Client is not entitled to excess Service Credits that would be available if not for this limitation.
(i) SERVICE CREDIT EXCLUSIONS. Client is not entitled to Service Credits for any Downtime or other event caused by: (1) Maintenance, Emergency Maintenance, or a suspension of Services; (2) software errors, including flaws, glitches, bugs and vulnerabilities in applications, operating systems, firmware and embedded software; (3) flaws in Client’s Content or the incompatibility of any operating system, application, other software or vendor-supplied security patches with Client’s Content; (4) acts or omissions of Client or agents of Client, including Client’s failure to approve necessary Maintenance; (5) the failure of Servers or services outside of a Datacenter on which the Services are dependent, including inaccessibility on the Internet that is not caused by Logicworks’ network; (6) Logicworks’ blocking of Content that Logicworks deems to be in violation of the AUP; (7) a force majeure or another event not in Logicworks’ direct control; (8) a denial of service attack, unauthorized access (e.g., hacking) or Malware; (9) Client’s failure to meet the terms and conditions of this Agreement; (10) colocated devices; (11) the use of a Shared Device by another Logicworks’ client; (12) Downtime or another event giving rise to Service Credits that is not reported by Client within five Business Days of the day on which the Downtime first or event first occurred; (13) time required to restore from backup; (14) Client’s use of a separate Logicworks service that is not subject to this SLA, including any Virtual Server instance that is not identified as managed on a Service Order; (15) the disabling (either intentionally or unintentionally) by Client of Logicworks’ administrative access to the Configuration (e.g., by changing a password); (16) the modification or deletion by Client of Logicworks’ administrative directories or any software installed by Logicworks for security, monitoring or Maintenance purposes; (17) any modifications made by Client that prevent a device from rebooting properly; (18) Client’s use of software that is no longer under vendor support (e.g., end of life); (19) Client becomes ineligible for Service Credits pursuant to any other provision of this Agreement; or (20) any delays requested by Client (e.g., Client requests that the replacement of failed Hardware be postponed until non-peak hours). If client engages in one or any combination of the activities specified in Clauses (15), (16) or (17) of this Section 6(i), Logicworks may perform Additional Services without Client’s prior approval, which Client will be required to pay for in accordance with the General Terms.
(j) SERVICE CREDIT PROCEDURES. For the purpose of determining Service Credit availability, Downtime will be measured from the first to occur of the following: (1) Client’s submission of a service request claiming Downtime to NOC through Logicworks online support portal, or (2) the detection of Downtime by Logicworks’ monitoring tools, provided that they have been jointly tested for proper event detection and alerting. Logicworks will determine, in its reasonable discretion, Client’s eligibility for Service Credits and the amount of Service Credits awarded pursuant to this Agreement. To be eligible for Service Credits, Client must send a reasonably detailed, written request for Service Credits to Logicworks within five Business Days after the first day on which the events giving rise to the request first occurred. Logicworks will use reasonable efforts to respond to all Service Credit requests within thirty days of receipt. The calculation of all Service Credits will be based on Logicworks’ records and data. Logicworks will apply Service Credits to the invoice for the month immediately following the month in which a determination of Service Credit amount and eligibility is made.
7. REPRESENTATIONS. Client represents and warrants that it has independently evaluated the suitability of the Hosting Services for their intended use, and that in purchasing the Hosting Services Client is not relying on any statement, agreement, warranty, guaranty, recommendation, or representation that is not expressly set forth in this Agreement.
(a) “Downtime” means one or any combination of the different types of Downtime that are defined in this Agreement.
(b) “Hardware” means the dedicated Servers, cables, routers, switches, load balancers, firewalls and other dedicated hardware that Logicworks makes available to Client as specified in a Service Order.
(c) “Service Credit” means one or any combination of the service credits made available to Client under this Agreement.
(d) “Shared Device” means any hardware or device that is used by Client and at least one other client of Logicworks, such as a shared load balancer, switch or Server.