SERVICE LEVEL AGREEMENT (DRAFT)

1. Definitions. In addition to the terms defined in the Agreement, these terms shall be defined as follows:
2. “Availability” means the percentage of time per Measurement Period during which the Service is not available for Customer’s use, as calculated in accordance with Section 2 of this SLA.
3. “Downtime” means the period during which the Service is not available for Customer’s use. The outage period is the time during which the Service is not Operational and equals the sum of Outage and Exempt Downtime.
4. “Exempt Downtime” means any unavailability of the Service which: (i) FTL provides Customer with at least 24 hours’ notice of such unavailability; (ii) was caused by circumstances beyond FTL’s reasonable control including, without limitation, force majeure events, denial-of-service-attacks, or third-party internet or communications service provider failures or delays; or (iii) was caused by any action or inaction on the part of Customer or any Customer system or website.
5. “Measurement Period” means the continuous time period over which the performance of the Service shall be measured or assessed. In general, performance shall be measured 24 hours a day, 7 days a week, and for the duration of a calendar month.
6. “Operational” means when the Service is materially available.
7. “Outage” means the period of time during which the Service is unavailable for Customer’s use, expressly excluding any Exempt Downtime.
8. Availability. For each calendar month, FTL shall make the Service available at least 99.7% of the time, except as otherwise provided herein. Availability will be solely determined by FTL and calculated as follows:

For Exempt Downtime events within its control, FTL will use commercially reasonable efforts to schedule Exempt Downtime events to (a) occur between 6:00pm to 3:00am Monday through Friday or any time on Saturday or Sunday (U.S. Pacific Time) and (b) last less than six (6) hours. For any partial calendar month during which Customer subscribes to the Service, availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.

1. Service Credits. If the Service is not available as set forth in Section 2 of this SLA, then the following Service Credits will be available to Customer as a credit toward the payment for additional Services:

1. Reporting, Claims and Notices. To claim a remedy under this SLA, Customer shall send FTL written notice containing the following details:
2. Billing information, including Customer name, billing address, billing contact and billing contact phone number;
3. Downtime information with dates and time periods for each instance of downtime during the relevant period; and
4. An explanation of the claim, including any relevant calculations.

Claims may be made on a calendar-month basis only and must be submitted within ten (10) business days after the end of the applicable month, except where the subscription term ends on a date other than the last day of a calendar month, in which case any claim related to that subscription must be submitted within ten (10) business days after the end of the subscription term. Any claim submitted after such time period shall be rejected.

All claims will be verified against FTL’s system records. If FTL disputes any period of unavailability alleged by Customer, then FTL will provide to Customer a record of the Service availability for the applicable period. FTL will provide such records only in response to claims made by Customer in good faith.

1. General. Any Service (or portion thereof) which is designated in writing as beta, limited release, developer preview or by descriptions of similar effect are excluded from this SLA and are provided solely on an as-is basis. FTL shall have no obligations under this SLA during any period in which Customer is in breach of the Agreement, including any period in which Customer has failed to meet its payment obligations thereunder.