Software Services and License Agreement

  1. DEFINITIONS

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity or its parent company, whether now existing or established by investment, merger or otherwise including the successors and assigns of such entities. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Malicious Code” means viruses, worms, time bombs, Trojan horses, intentional disabling devices, and other harmful or malicious code, files, scripts, agents or programs.

Professional Services” means and includes deployment services, implementation, project management, product configuration and consulting, IT and/or training services that You or Your Affiliates purchase from Us from time to time under a statement of work or as described in the Service Order attached hereto as Exhibit A and any subsequent Service Orders executed by the parties.

Subscription Services” means and includes a license and access to the Subscription Software and associated hosting services as described in the Service Order attached hereto as Exhibit A and any subsequent Service Orders executed by the parties.

Services” means and includes the Subscription Services and the Professional Services.

Subscription Software” means Our proprietary software products, and associated content, and other copyrighted materials and methodologies owned by Us and shared with You during the term of this Agreement.

User(s)” means unique individual(s) who are authorized by You to use the Subscription, and who have been supplied login credentials (user names and passwords) by You (or by Us at Your request).  No more than one individual is allowed to access one login credential.  Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

We,” “Us” or “Our” means BambuMeta, LLC.

You” or “Your” means the Customer identified above.

Your Data” means all data and information submitted by You to Subscription software.

  1. THE SERVICES

2.1. Subscription Services. We shall: (i) provide You access to the Subscription Services, in accordance with the Service Levels attached as Exhibit C, except for: (a) planned downtime (of which We shall give at least 48 hour notice via the Subscription Services provided and which We shall schedule to the extent practicable within the weekend hours from 6:00 p.m. PST Friday to 8:00 a.m. Monday EST), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks; provided that if any such event adversely affects the Subscription Services for 15 or more consecutive days, You may terminate the affected Subscription Service and We shall refund to You any prepaid fees covering the pro rata of the remaining term after the effective date of termination, (ii) provide the Subscription Software only in accordance with applicable laws and government regulations, and (iii) provide email or phone support available during 8AM EST to 6PM PST Monday through Friday.

2.2. Professional Services.   Professional Services will be made available to You by Us as specified in the Service Order attached hereto as Exhibit A and any subsequent Service Orders executed by the parties. Such Professional Services are subject to this Agreement, and any updates, or modifications, subject to mutual written consent, provided, as part of the Professional Services shall be considered part of the Agreement hereunder.  We represent and warrant that all Professional Services shall be provided in a professional and workman-like manner, in accordance with industry standards.

2.3 Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data in accordance with applicable laws and government regulations. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 5.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and address service or technical problems, or at Your request in connection with customer support matters.

2.4. Your Responsibilities. You shall (i) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription and notify Us promptly of any such unauthorized access or use, and (iii) use the Subscription Services only in accordance with applicable laws and government regulations. You shall not (a) make the Subscription Software or Subscription Services available to anyone other than Users except as permitted in the applicable Service Order, (b) sell, resell, rent or lease the Subscription Services or any component thereof, (c) use the Subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Subscription Services or their related systems or networks.

2.5. Usage Limitations. Subscription Services may be subject to additional limitations, such as, for example, limits on disk storage capacity, the amount of data You are permitted to create and stored, or limitation on user access in certain geography.  Any such limitations, if they exist, are specified in the applicable Service Order.

  1. FEES: PAYMENT

3.1.  Fees and Payment.  The fees for the Services are as set forth in the Service Order attached hereto as Exhibit A.  Additional Services may be ordered under this Agreement by the parties’ execution of additional Service Orders.  Each Service Order will be considered separate orders for Services, unless otherwise specified in the Service Order. You agree to pay such fees and reimburse Us for all reasonable travel or other related expenses incurred in connection with the performance of Professional Services within thirty (30) days of invoice (except as otherwise specified in the applicable Service Order), provided that all expense are approved by You and We shall comply with Your travel policies.

3.2.  Tax Responsibilities.  You shall be responsible for any applicable sales or use taxes or any value added or similar taxes payable with respect to Your purchase or use of the Services, other than taxes levied or imposed based upon Our net income, property, or employees. We shall invoice You for such taxes and You agree to pay such taxes in accordance with this Agreement. 

3.3 Non-Payment Suspension.  If any amount owing by You under this or any other agreement for Our Services is 15 or more days overdue, We may, without limiting Our other rights and remedies, i) assess a late charge equal to the lesser of (a) 1% per month or (b) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law, and/or ii) suspend Our services to You until such amounts are paid in full.  We will give You at least 14 days’ prior notice that Your account is overdue, in accordance with Section 11.2 (Manner of Giving Notice), before suspending services to You.  We shall not exercise Our rights to suspend the delivery of Services if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

  1. PROPRIETARY RIGHTS

4.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, and all components thereof including the Subscription Software, and all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

4.2. Restrictions. You shall not (i) permit any third party to access the Subscription Services except as permitted in the applicable Service Order, (ii) create derivative works based on the Subscription Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Subscription Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Subscription Services, or (v) access the Subscription Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Subscription Services or Subscription Software.

4.3. Your Data. You grant Us and Our Affiliates and a worldwide, limited-term license to host, copy, use, transmit, and display Your Data solely as necessary to provide the Services in accordance with this Agreement. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. However, We may gather insights from Your Data on an anonymized and aggregated basis that cannot be used to identify You or any individual to better understand how to provide our Service. 

4.4. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the Services or Subscription Services.

  1. CONFIDENTIALITY

5.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Subscription Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all commercial terms, as well as business and marketing plans, customer lists, trade secrets, strategic plans, supplier information, mergers/acquisitions, non-public company financials, technology and technical information, product plans and designs, or business processes gained by the other party during performance of the Services under this Agreement.  However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any commercial terms to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.  The Receiving Party is liable for all unauthorized uses or disclosures of Confidential Information by any person to whom it discloses Confidential Information.

5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is required by law to do so, provided the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. In any event, the Receiving Party shall disclose no more than that portion of the Confidential Information that its counsel advises is required. If the Receiving Party is required by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

  1. DATA STORAGE AND LEGAL RESPONSE OBLIGATIONS

6.1 Data Ownership.  You shall have exclusive ownership, control of, and access to, Your Data.  The placement or presence of Your Data on data storage systems owned by Us, or within our possession or control, is not intended to, and does not constitute, a transfer of title and ownership in Your Data.

6.2 Litigation Hold.  In the event that You notify Us that Your Data may be subject to future discovery due to the reasonable anticipation of litigation or otherwise (a “Litigation Hold Event”), We will implement, within 3 business days, reasonable measures to preserve Your Data (including related metadata) in the state in which it exists at the time You notify us.  Our reasonable measures to preserve Your Data subject to a Litigation Hold Event shall include but are not limited to making a “snapshot” or backup copy of Your Data, disabling write access to Your Data (unless You inform us that doing so will interfere with business functions), and disabling automatic deletion or maintenance routines.  We will promptly confer with You and Your counsel on the measures to be undertaken in the event of a Litigation Hold Event. If the need arises, we will make available to You a representative who can explain our preservation efforts to an adversary, a regulatory agency, or a court of law, as required, and provide any affidavits or testimony.

6.3 Subpoenas and Discovery Response.  In the event We or any of our affiliates receive a subpoena, discovery, document request, investigatory demand or other judicial or regulatory process seeking disclosure of Your Data or information related thereto (a “Request”), we will notify You of such Request within three (3) business days and provide You all documentation related thereto.  We shall not provide to third parties or agencies any of Your Data or information about Your Data in response to a Request unless the You consent in writing or unless we are ordered to do so by a court of competent jurisdiction after You have had a reasonable opportunity to intervene or otherwise become involved in the matter that generated the Request.  We will cooperate with the You in the filing of any objection, motion to quash, or similar effort to limit or block any Request.  If You are a party to a civil proceeding related to a Request and not contesting the disclosure, You will reimburse for our reasonable cost of compiling and providing access to Your Data to the party or parties who issued the Discovery Request.

6.4 Costs and Expenses.  For the avoidance of doubt, all measures requested by You pursuant to and in accordance with this Section 6 shall be made available at Your expense subject to reasonable notice.  You agree to pay for such services at a reasonable rate, plus all out-of-pocket expenses.

  1. WARRANTIES AND DISCLAIMERS

7.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the functionality of the Subscription Services will not be materially decreased during the Services term, (iii) We will use commercially reasonable efforts to avoid transmitting Malicious Code to You, and (iv) We are the legal owner of and have full right, title and interest in the Subscription Services, and that the Subscription Services have been developed by Us or We are currently the legal owner of distribution rights for the Subscription Services.  For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.2 (Termination for Cause) below.

7.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. MUTUAL INDEMNIFICATION

8.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Subscription Software or Subscription Services as permitted hereunder infringes or misappropriates any patents, copyrights, license, trademarks, or any other intellectual property rights of a third party (a “Claim Against You“), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Subscription Software or Subscription Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Subscription Software or Subscription Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Subscription Software in accordance with this Agreement, or (iii) terminate Your Subscription Software or Subscription Services upon 30 days’ written notice and refund to You any prepaid fees covering the pro rata of the remaining term after the effective date of termination.

8.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us“), and shall indemnify Us for any damages, attorney fees and costs finally awarded against to the third party claimant as a result of, or for any amounts under a court-approved settlement that You agree to in writing signed by an authorized officer of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

  1. LIMITATION OF LIABILITY

9.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU TO US IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU TO US.

9.2.  Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.3. Exceptions.  THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9.1 (LIMITATION OF LIABILITY) AND 9.2 (EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES) SHALL NOT APPLY TO (A) OUR BREACH OF SECTION 2.3 (OUR PROTECTION OF YOUR DATA), (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY), (C) A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8 (MUTUAL INDEMNIFICATION) UNDER THIS AGREEMENT OR (D) DAMAGES CAUSED BY EITHER PARTY’S WILLFUL MISCONDUCT.

  1. TERMS AND TERMINATION

10.1. Term of Agreement. This Agreement commences on the Effective Date and continues until the end of the term of the of all Service Orders executed by the parties pursuant to this Agreement.

10.2. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If You terminate this Agreement for cause, We will promptly refund to You on a pro rata basis any prepaid fees covering the remaining term after the effective date of termination. In addition, you may terminate this Agreement as set forth in the Service Levels attached as Exhibit C.

10.3. Return of Your Data. Upon request by You made within 60 days after the effective date of termination of the Subscription Services, We will make available to You for download Your Data created by You during the term of the project free of charge.   After such 60-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

10.4. Surviving Provisions. 4 (Proprietary Rights), 5 (Confidentiality), 7 (Warranties and Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.3 (Return of Your Data), 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

  1. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

11.1. General.  This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware and may be amended from time to time only by a writing signed by both parties.  Each party agrees to the applicable governing law without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts.  Each party consents to the jurisdiction of the courts located in the State of Delaware.

11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).

11.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

  1. GENERAL PROVISIONS

12.1. Export Compliance. The Subscription Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Russia, Sudan or Syria) or in violation of any U.S. export law or regulation.

12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.3. Waiver. No failure or delay by either party in exercising any right under this Agreement shall imply or constitute a waiver of that right whether of a similar nature or otherwise.

12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.5. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement.

12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all subsequent renewal and orders based on this contract), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all Services after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.7. Entire Agreement. This Agreement, including all exhibits, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your Purchase Order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

12.8 Service Levels

Availability Commitment:

During any given full calendar month of the subscription term, the Subscription Service will be available to Customer 99.5% of the time calculated as follows (rounded to the nearest one hundredth of one percent):

Availability % = 100% x (Total minutes per month minus downtime minutes per month) / Total minutes per month

Exclusions:

Services may be unavailable from time to time due to a Scheduled Outage. A “Scheduled Outage” is the time period during which the Services are scheduled to be unavailable for use by end users due to such things as preventive maintenance or upgrades. We will endeavor to provide two weeks’ notice of Scheduled Outages and to schedule Scheduled Outages at times during which the use of the Services is typically low.

Emergency Maintenance:

We may perform emergency maintenance, which will be included as downtime in the Availability Commitment calculation above. We will use commercially reasonable efforts to notify You of emergency maintenance as soon as practicable.

Service Level Credits:

If availability of the Subscription Service is less than the Availability Commitment, then You may request and receive a service level credit equal to an amount determined in accordance with the table below (“SLA Credit”). The SLA Credit is calculated as the applicable percentage outlined below multiplied by the annual subscription fee paid by You for the then current annual period divided by twelve (12).

Availability %

Service Level Credit

99.00% – 99.49%

5%

96.00% – 98.99%

10%

94.00 – 95.99%

15%

90.00 – 93.99%

20%

< 90.00%

25%

SLA Credits will be issued as a separate credit memo that You can apply towards fees payable for any subsequent annual term for the Subscription Service. If SLA Credits cannot be applied to a future fee due to non-renewal of the applicable Subscription Service or termination of the Agreement, We will pay You the amount of the SLA Credit within thirty (30) days from (a) Our receipt of notice of non-renewal or (b) termination of the Agreement, as applicable. If availability of the Subscription Service is less than the Availability Commitment in two consecutive calendar quarters, You may terminate the Agreement by providing notice of termination, in which case We will refund to You any prepaid fees covering the pro rata of the remaining term after the effective date of termination within 30 days after termination.

Reporting and Confirmation:

To request an SLA Credit, You must log an incident with Us within ten (10) business days following the calendar month in which the Subscription Service is unavailable, along with the following information: (a) the way the Subscription Service is unavailable to You and (b) the date and time that the Subscription Service first became unavailable to You.

Unavailable minutes will be calculated from the starting time of the incident until the time the incident is resolved by Us. Upon receipt of Your notification, We will verify Your report through any available system logs and records.