Intelligent Digital Marketing | 8020 Solutions

SUMMARY

The Terms and Conditions of this SLA apply: (i) only if You have otherwise agreed in writing with 80/20 to a minimum service Term of one year or more; (ii) only in respect of the provision of services that you have jointly agreed to in writing with 80/20 in the Subscription Services Agreement (the “SSA”), attached and incorporated by reference; and (iii) only if Your account with 80/20 is in good standing.  Use of the Platform is offered to You on the condition that You accept the terms and conditions in this SLA as-is, without modification.  If You do not accept them or cannot comply with all of the terms of this SLA, then You have no license to use the Platform or otherwise access 80/20’s servers and 80/20 therefore makes no service level commitments whatsoever.  80/20 reserves the right to unilaterally amend any term or condition of this SLA or change any service or function of the Platform at any time without notice.  If 80/20 makes a material change to these terms and conditions then it will provide reasonable and conspicuous notice.  It is Your responsibility to periodically check for amendments to this SLA.

SUPPORT PACKAGES

80/20 offers three (3) levels of customer support in the form of “Support Packages”.  You must choose a Support Package at the time you execute your SSA, but You may increase it at any time, by mutual agreement with 80/20 in writing. 

All Support Packages include initial training on the Platform, plus access to online demos, frequently asked questions (“FAQ’s”) and product Help Guides.

Details of the three (3) Support Packages are as follows:

    1.     Silver Support Package - The Silver Support Package entitles 80/20 Solutions customers to Online Customer Support.

a.        Issue response within 4 hours 

    2.    Gold Support Package - The Gold Support Package entitles 80/20 Solutions customers to all of the Silver Support Package features plus: 

a.        Priority Issue Support (Email)

b.        Priority Online Support

c.        Quarterly Value Statement Report

d.        Call Centre Support from 9am-5pm (EDT) Monday to Friday.

e.        Issue response within 2-4 hrs

The Gold Support Package includes telephone support during our normal support hours of 9am - 5pm (ET).  Priorities are assigned based on problem urgency and the impact on your business. 

    3.     Platinum Support Package - The Platinum Support Package entitles 80/20 Solutions customers to all the Gold & Silver Support Package features plus: 

a.        Priority Issue Support (Email)

b.        Priority Online Issue Submission & Support

c.        Assigned Support Representative

d.        Assigned Account Manager

e.        Monthly Value Statement Report

f.         Consultative Marketing Support (Best Practices)

g.        Enhanced User Training

h.        Issue response within 2 hours

i.         Drupal CMS support

j.         24/7 critical issue Support**

The Platinum Support Package includes telephone support during our normal support hours of 9am - 5pm (ET). Priorities are assigned based on problem urgency and the impact on your business.

**24/7 Support is available for critical issues only.  Critical issues are defined as issues that affect critical data or functionality in a major feature that severely affects users, with no available workaround. Please note that users that contact the 24/7 support with non-critical issues may be subject to additional billing for misuse.

SERVICE LEVEL COMMITMENTS AND PROCEDURES

1.        Protection of Your Data.  Information that You upload to the Platform, including without limitation Your text, artwork, user information or other materials or content, remains Your exclusive and confidential property at all times (“Your Data”).  80/20 takes commercially reasonable precautions to prevent the loss of or alteration to Your Data at all times, including without limitation the precautions and procedures outlined herein.  However, 80/20 cannot guarantee against any such loss or alteration.  Accordingly, You must, to the extent that You deem necessary, keep copies of all source documents related to Your Data that has been input or uploaded to the Platform and You must also maintain a system external to 80/20 for the backup of Your Data.

2.         Data Centre Specifics.  At any time, 80/20 may host Platform servers and infrastructure at a variety of hosting providers.  80/20 hosts only with tier-1 providers.  Each such provider employs no less than the following:

a.         Generator backup; 

b.         UPS power protection;

3.        80/20 Server and Data Backup.  Within its hosted environments, 80/20 employs the following configuration and procedures for server and data backup:

a.   All servers used in 80/20 hosting environments feature redundant configuration or power supplies.

4.         Uptime Commitment.  80/20 will make best efforts to have the Platform available for You and by end consumers for System Access at least ninety-nine percent (99%) of the time on an annualized basis (the "Uptime Commitment"), excluding Excusable Downtime, as defined herein. 

a.     System Access of the Platform means: access to the services, functions or tactics that You have purchased at any time. 

b.     System Outage means: Non-access to any Platform services, functions or tactics that You have purchased at any time, excluding Excusable Downtime.

c.     Excusable Downtime means: (i) Scheduled Maintenance and Upgrades as described herein; (ii) acts or omissions by You or Your customers, users, employees, agents, or contractors, or anyone gaining access to the Platform by means of Your passwords or equipment (except where such access is the result of an act or omission of 80/20); or (iii) suspension of Your Use of the Platform due to Account Lockout or temporary suspension for unpaid services.

d.    Emergency Action.  80/20 reserves the right to take immediate corrective action in order to maintain stability and overall availability of the system as reasonably required and such emergency action shall not be considered or calculated towards system downtime

5.         Remedy.  Your sole remedy for 80/20’s breach of its Uptime Commitment level contained herein shall be a pro-rata extension of your subscription by an amount equal to the percentage of System Outage outside the Uptime Commitment on an annualized basis.

6.        Scheduled Maintenance & Upgrades.  80/20 may occasionally perform maintenance and upgrades to the Platform, it’s data center or network environments.  All Scheduled Maintenance and Upgrades shall be performed during non-business hours (local time) where possible and shall be kept to a minimum as much as commercially practicable.  80/20 will give advance notice of scheduled maintenance windows as reasonably possible.

7.        Monitoring and Reporting.  80/20 will monitor the performance and availability of Platform and applications System Access on a continuous basis.  80/20 maintains both automated and manual system performance monitors in order to identify and act on System Access failures.  A personalized report will be provided in the event of a Critical outage.

8.         Escalation. 80/20 monitors System Outages, as well as user requests and notifications through 80/20’s online ticket system (“Problem Reports”) on a 24x7 basis using commercially reasonable efforts.  You may contact 80/20 to report Platform problems at any time by submitting a Problem Report by either email or phone in accordance with the relevant Support Package purchased by You and detailed in your Subscription Services Agreement, incorporated herein by reference.  PLEASE NOTE:  80/20 will only respond to PROBLEM REPORTS received from Your authorized representatives, as defined in Your respective Escalation Contact List, SSA oR CLIENT PROPOSAL DOCUMENT.

a.   Problem Report Prioritization.  All Problem Reports are prioritized as follows.

                      i.     80/20, in its sole and absolute discretion (acting reasonably), will make an initial investigation of the severity level of each Problem Report and classify it as either a platform error or an external problem.

                      ii.     If the Problem Report is classified as an external problem, then You will be notified promptly in accordance with the your Support Package level and response times.

                     iii.     If the Problem Report is classified as a platform error, then it will be assigned a severity level according to the descriptions set forth below. 

                    iv.     After further research, 80/20 may reclassify platform errors from one severity level to another upon consultation with You. 

                    v.     When a severity level is assigned, 80/20 will promptly designate appropriate management and engineering support personnel to investigate and take corrective action with respect to any platform error.  

                   vi.     Corrective action for platform errors may initially include a temporary fix or work-around solution.

b.   Severity Levels.  Platform errors are separated into severity levels depending on System Access and availability of the Platform for users.  The severity levels are as follows:

                       i.     Critical: A Critical error is a Platform Error that makes the general use of the Platform impossible and that cannot be circumvented or avoided on a temporary basis.  The condition requires an immediate solution that is not already available.  80/20 will initiate an effort to replicate and verify the reported Platform Error within two (2) hour of Platform Error classification during applicable support hours, provide continuous effort to arrive at a fix or work-around, and will use commercially reasonable efforts to provide You with a fix or work around within one (1) business day of receiving the Problem Report.  You shall be updated on the current status of Critical problems by telephone or email every two (2) hours during normal business hours.

                      ii.     Major:  A Major error is a Platform Error that makes the general use of the Platform difficult and that can be circumvented or avoided on a temporary basis.  80/20 will initiate an effort to replicate and verify the reported Platform Error within four (4) hours of receiving the Problem Report during applicable support hours, and will provide You with a fix or work-around within five (5) business days of receipt of the Problem Report.

                     iii.     Minor:  A Minor error includes all other Platform Errors that are not covered in Critical or Major error categories.  80/20 will begin work on such problem identification and verification within two (2) business days of receipt of the report of the problem during applicable support hours, and will provide You with a proposed fix or work-around within seven (7) business days.

c.     Escalation Contact Procedures.  Depending on the procedures outlined in your Support Package, to report a Platform error, You must do one of the following:

                     i.     login to 80/20’s online error ticket tracking system  through the 80/20 Client Portal and submit an online error ticket;

                     ii.     Immediately contact Your 80/20 client services representative by email (available to Gold and Platinum Support users only); OR

                    iii.     Immediately contact Your 80/20 client services representative by phone (available to Gold and Platinum Support users only).

9.        Security. 80/20 takes commercially reasonable precautions to prevent commonly known means of obtaining unauthorized entry into the Platform and data systems.  80/20 will notify You of a security breach within two (2) hours of discovery of any such occurrence.

a.   Password Management.  System Access is password protected according to industry standards.  Users are responsible for security of their passwords.  Lost or forgotten passwords may be retrieved directly from 80/20 by correctly answering a security question.  All passwords are controlled by a single senior 80/20 executive.

b.   80/20 Employees.  New employees are required to execute security and confidentiality agreements with 80/20.  Only 80/20 personnel that are part of the development team have access to internal systems.  Such access is limited to work purposes and in all cases is tracked.  In the event of termination of employment, that employee’s access is removed from all physical locations and from all servers and websites immediately prior to termination or departure.

10.       Account lockout.  Misuse of the Platform or non-conformance with 80/20’s acceptable use policy as defined in the Platform User License Agreement, (incorporated herein by reference) is reviewed by 80/20 personnel and may, in 80/20’s sole and absolute discretion, result in account lockout and or termination of user privileges

HARDWARE AND DATA DISASTER RECOVERY

1.        Hardware Restoration.  In the event of a hardware failure, all critical systems will be promptly restored via first-line support services from relevant hardware manufacturers and/or data centre personnel.  In the event that additional or new hardware is required to rectify any hardware failure, 80/20 will obtain such hardware at its expense as soon as commercially practicable.  All data will be restored on hardware as soon thereafter as commercially practicable as defined in paragraph 2 of this section.  If the affected hardware cannot be restored within one (1) business day, then all affected customers will be notified.  80/20 maintains a team of engineers on duty and standby for physical replacement, as necessary.

2.        Data Recovery.

a.   First notification.  Upon first notification of a hardware or data failure, 80/20’s disaster recovery coordinator will:

                      i.     Assess all damage and failure issues, including networks, hardware and data;

                      ii.     Promptly notify 80/20’s disaster recovery team of the failure status;

                     iii.     Determine immediate courses of action;

                     iv.     Retrieve backup media of all affected systems and sites; and

                     v.     Provide You with an initial status report (“Initial Status Report”) in accordance with your chosen Support Package.

b.  Restoration.  As soon as reasonably possible after receipt of first notification, the disaster recovery coordinator will commence the process of restoration as follows;

                      i.     Notify the Client Services team so that it can appropriately notify You, if necessary;

                      ii.     Develop a restoration and recovery schedule;

                     iii.     Begin the system recovery process for normal network operations;

                     iv.     Restore any of Your affected pages or sites;

                     v.     Provide You (through our Client Services team) with an updated assessment of progress and status of any failure to Your data;

                    vi.     Continuously monitor restored systems, operations and sites to verify that data recovery is complete and accurate.

c.   Conclusion. At the conclusion of the recovery process, 80/20 will provide all affected customers with a final status report in accordance with the Service Level Commitments and Procedures section above and further detailing the cause(s) of the failure, all corrective steps taken and any future preventative measures added.

TERM AND REMOVAL OF CONTENT AT CONCLUSION OF SERVICE

1.         This agreement shall become effective upon the date of commencement of your subscription service, but in no event later than your first use of the Platform and concludes at the termination of your subscription, unless service is otherwise terminated prior by either party in accordance with your SSA. 

2.         In the event of termination or conclusion of service for whatever reason, You must promptly contact 80/20 at 416-960-8020 to arrange to remove and recover Your Data from the Platform.  Your Data will be permanently removed and deleted from 80/20 databases and servers within twenty (20) business days after conclusion of the user license or business relationship between You and 80/20, in accordance with the Platform License Agreement.  Log information related to your account and other 80/20 data may be stored confidentially and electronically in accordance with government or legislative requirements. 

3.         80/20 is in no way responsible for damages of any kind (whether direct or indirect), including without limitation loss of profits, resulting from Your failure to remove your data and content within the prescribed time.

GENERAL

1.         Independence.  You and 80/20 both agree that you are independent with respect to the other and that unless otherwise agreed to writing, this Agreement and any related documents do NOT create an employment relationship, partnership or joint venture between the parties or any of their employees or agents.  Neither party is the agent of the other nor has the authority to bind the other, to incur any liability or otherwise act on the behalf of the other, or to direct the employees of the other, unless otherwise specifically authorized to do so in a separate writing.

2.         Reservation.  80/20 reserves the right to modify, amend or revise the terms of this SLA at any time.

3.         Arbitration.  In the event that any disagreement arises between 80/20 and You with reference to this Agreement, use of the Platform or other Services, or any matter arising hereunder and upon which the parties cannot agree, then every such disagreement shall be referred to binding arbitration pursuant to and in accordance with the provisions of The Ontario Arbitration Act 1991, as amended.  All matters in dispute under this Agreement shall be referred to the arbitration by a single arbitrator.  If the parties cannot agree upon one arbitrator, then arbitration shall be by three (3) arbitrators, one to be appointed by each party and a third to be chosen by the two (2) first named, before they enter upon the business of arbitration.  The award and determination of such arbitrator or arbitrators, or any two (2) of such three (3) arbitrators, shall be final and binding upon the parties hereto and their respective heirs, executors, administrators and assigns.  There shall be no right of appeal.  The prevailing party shall be entitled to all reasonable costs and legal fees.

4.         Force Majeure.  80/20 shall in no way be liable for any failure to perform or breach of this Agreement, in whole or in part, by reason of Force Majeure, including without limitation an act of God, strike, walkout, public enemy, war, civil commotion, riots, judicial or governmental order, other requirement of law or any other cause beyond the reasonable control of 80/20.

5.         Invalidity of Provision.  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceable without invalidating the remaining provisions and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.  For any provision so severed there will be deemed substituted a like provision to accomplish the intent of the parties as closely as possible to the provision as drafted, as determined by any court or arbitrator having jurisdiction over any relevant proceedings, to the extent permitted by the applicable law.

6.        No Assignment; Binding Effect. You may not assign or transfer this Agreement, or any duties, rights, or responsibilities under it, without prior written consent from 80/20.  This Agreement will be binding upon, and will inure to the benefit of the parties and their respective successor entities.  Notwithstanding anything herein or otherwise to the contrary, 80/20 may assign its rights and obligations to any third party in connection with a merger, acquisition, sale of all or substantially all of its assets, or any other corporate reorganization.

7.         Entire Agreement; Waiver; Amendments. This Agreement constitutes the entire agreement between 80/20 and You pertaining to the subject matter thereof and supersedes all prior and contemporaneous oral and written agreements.  There are no warranties, conditions, or representations (including any that may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to herein.  No reliance is placed on any warranty, representation, opinion, advice or assertion of fact made by You or Your directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of this Agreement.  Accordingly, there will be no liability, either in tort, or in contract, assessed in relation to any such warranty, representation, opinion, advice or assertion of fact, except to the extent aforesaid. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof or constitute any form of estoppels.

8.         Notices.  Any notice to be given hereunder shall be deemed to have been duly given if reduced to writing, signed by or on behalf of the party giving such notice and delivered by hand, mailed by prepaid registered mail or transmitted by fax and addressed to the address or fax number as any party hereto may have specified in writing and given to the other party.  Any notice given by registered mail shall be deemed to have been received by the parties to whom the same is addressed on the fifth (5^th) business day following the day upon which such notice has been deposited in a post office with postage and cost of registration prepaid. Any notice given by hand or by fax shall be deemed to have been received by the party to whom it is so delivered on the following business day.

9.        Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflict or choice of laws provisions.  The parties agree that any arbitration between the parties will take place in Ontario and You hereby consent to personal jurisdiction and venue in Ontario.

Last Updated December 11, 2009

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