Service Level Agreement
Effective: November 01, 2022
This Service Level Agreement applies to TheFence customers with active small/medium/large/enterprise level subscriptions to TheFence’s Services (each, a “Client”). For its Clients, TheFence will provide the following service levels for the Services as set forth below.
- Service Availability. TheFence will use commercially reasonable efforts to make the Services available at least 99.5% of the time in a Reporting Period (“Service Availability Commitment”), excluding for Maintenance Time and Excluded Time.
(a) “Maintenance Time” means the time (in minutes) for (i) maintenance periods scheduled with advance notice to Client to perform system maintenance, backup, and system updates and upgrades for the Services and (ii) emergency unscheduled maintenance. Emergency maintenance will be undertaken when, in TheFence’s sole reasonable discretion, it is deemed necessary to prevent prolonged loss of Service Availability, harm to TheFence’s systems, or other material adverse consequences. TheFence will endeavor to provide advance notice of such maintenance to Client when practicable, depending on the circumstances.
(b) “Excluded Time” means any time (in minutes) the Services are unavailable to Client due to: (i) any event or circumstance beyond the reasonable control of TheFence, including natural catastrophes, governmental acts, war, terrorism, labor strikes or difficulties, interruptions or failure of the Internet, failures of third-party network connections, or service outages of third-party service providers; (ii) Client’s programming of or modifications to its APIs in a manner that affects its ability to interact or communicate with the Services; (iii) equipment, software, or other technology of Client or a third party that are not within the primary control of TheFence; (iv) Client’s use or attempted use of the Services in a manner not approved or authorized by TheFence, and/or (v) interruptions caused by the negligence, error, or omissions of Client.
(c) “Reporting Period” means a calendar month.
(d) “Unscheduled Downtime” means total time in minutes of any unavailability of theServices that occurs other than due to Maintenance Time or Excluded Time.
(e) “Services” has the meaning described in the Underlying Agreement.
(f) “Service Availability” will be calculated for each Reporting Period as follows, expressed as a percentage:
(g) “Underlying Agreement” means the agreement between TheFence and Client pursuant to which TheFence provides the Services, which may be the TheFence Terms of Service, available at thefence.net/legal/terms-of-services, or the Master Services Agreement between TheFence and Client, as applicable.
- Defined Terms. Capitalized terms will have the meanings provided in this Section 2 or as otherwise defined in this Service Level Agreement: 3. Service Credits for Service Availability. If TheFence does not meet the Service Availability commitment in a Reporting Period, Client will be eligible to receive a service credit equal to:
< 99.5% – 98%
5% of the applicable Fees paid by Client for the Reporting Period
Less than 98%
10% of the applicable Fees paid by Client for the Reporting Period
- Request for Service Credit.Client must make request for a credit within ten business days after the end of the relevant Reporting Period. All credit requests will be verified against TheFence’s system records. The service credits will then be applied to reduce, on a dollar for dollar basis, the amount payable by Client for the following Reporting Period.
- Termination. Client may terminate the Underlying Agreement upon five days’ written notice to TheFence if the Service Availability falls below 98% in each of three consecutive Reporting Periods or four or more Reporting Periods in a six-month consecutive period. Client must exercise the termination right within 10 business days of the end of such three-month or six- month period, as applicable. If Client exercises its right to terminate pursuant to this Section 5, Client will not be entitled to any service credits.
- Sole Remedy.This Service Level Agreement sets forth Client’s sole and exclusive remedy for TheFence’s failure to meet the Service Availability Commitment.
- No Other Modification.Except as expressly provided herein, the Underlying Agreement remains unmodified in all respects and in full force and effect. This Service Level Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without regard to conflict of law rules or principles (whether of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any disputes arising out of this Service Level Agreement shall be resolved in accordance with the terms of the Underlying Agreement. Thefence may amend this Service Level Agreement from time to time in its sole discretion.