Third Party Offering via Instart Logic MSA Blue Triangle

Transcription

1 Third Party Offering via Instart Logic MSA Blue Triangle Part A: Blue Triangle Terms and Conditions Part B: Blue Triangle Technologies, Inc. Service Level Agreement Part A: Blue Triangle Terms & Conditions These terms and conditions shall apply to the Blue Triangle Technologies, Inc. ( BTT ) products and services ordered by Customer under or in connection with this Service Order. 1. BTT Services: (i) BTT will analyze the real user experience measurements with predictive performance analytics to identify baseline opportunities for Customer. (ii) BTT will measure real user traffic from both desktop and mobile users and correlate where page speed is impacting conversions and other business metrics. The collection of this data is critical to understanding the baseline of the page performance-to-conversion relationship. (iii) Remote Professional Services: BTT will provide baseline assessment analysis and a comparison analysis after the Instart Services have been implemented, followed by regular scheduled calls to review data. Customer is entitled to draw down a set number of remote of professional services according to the Order Details (BTT consulting services) per calendar year during the initial term of the Service Order and each annual renewal period. The fee for these set professional services are included in the Monthly Recurring Fee for the BTT products and services ordered as specified in the Service Order. Professional services not used during the calendar year to which they relate cannot be carried over to a subsequent term or renewal period. Any professional services used in excess of your set number of professional services (as specified in the Service Order) in a calendar year shall be subject to an additional hourly charge at the rate set forth in the Service Order. (iv) BTT will provide unlimited user access to and a set number of training according to the Order Details its customer portal, where business and technical stakeholders can utilize: automated reports personalized dashboard alerting on both business metrics and performance metrics drill down on all conversion rate and bounce rate correlations 2. Customer Responsibilities: Customer shall nominate at least one (1) point of contact who shall be available at all necessary times to provide information and discuss set-up, page-naming variables, site calibration metrics, and other items necessary to the functioning of the BTT products and services. 3. Indemnification by BTT. (i) BTT will defend, indemnify, and hold Customer harmless from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys fees) arising from claims by a third party: (a) with respect to BTT s breach of these terms and conditions or violation of applicable law; or (b) that Customer s use of the BTT products or services infringes or misappropriates a third party s intellectual property rights (an Infringement Claim ). Should any portion of the BTT products or services become, or in BTT s opinion be likely to become, the subject of any Infringement Claim, then Customer will permit BTT, at BTT s option and expense, to procure for such party the right to continue using the product or service, to replace or modify the product or service or portion thereof to be non-infringing, or to take any other action reasonably deemed advisable by BTT related to such alleged infringement. In the event none of these remedies is available and/or practical, BTT may, in its sole discretion, terminate the right to use the product or service and return to Customer the fees paid with respect to the infringing product or service, reduced on a prorated basis for each month the product or service is used by Customer. Notwithstanding any other provision in this Agreement, BTT shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any customer content with the BTT product or service; or (b) the combination of any products or services, other than those provided by BTT to Customer under this Agreement, with the BTT products or services. 1/5

2 (ii) Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity or reimbursement under this Section 3 (each an Indemnified Party ) and as a condition of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim to the extent that the Indemnified Party is in possession or has knowledge of such information; provided that any delay in giving such notice shall not preclude the Indemnified Party from seeking indemnification or reimbursement thereunder if: (i) such delay has not materially prejudiced the indemnifying party s ability to defend the claim; and (ii) such delay does not materially affect the amount of any damages awarded for or paid in settlement of such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim. (iii) Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party s prior written consent, to settle a claim. Part B: Blue Triangle Technologies, Inc. Service Level Agreement BLUE TRIANGLE TECHNOLOGIES, INC. SERVICE LEVEL AGREEMENT for BTT Portal and Tag Delivery System Capitalized terms used herein not otherwise defined shall have the meanings set forth in the Agreement or any fully executed Service Order. 1. Service Level Commitment. Vendor recognizes the importance of ensuring that the Services are available to Client and its Affiliates on a consistent basis. Vendor shall provide the Services in accordance with the service levels described in this agreement. Vendor shall provide formal monthly Service Level performance metrics reports upon request to Client regarding performance relative to any Incident, Problem, change, availability, transaction throughput and release management. If Vendor fails to meet a Service Level in any given month, Vendor shall: (a) immediately report that failure to Client; (b) promptly investigate the causes of the Problem; (c) prepare a report identifying the causes and the methods to be used by Vendor to correct the Problem and prevent any future recurrence(s); and (d) take reasonable actions necessary to correct the Problem and begin meeting the Service Level as soon as practicable. 2. Designated Success Manager. Vendor shall, throughout the Term of each Work Order, designate to Client an employee whose role is to ensure successful implementation of the Services (the Designated Success Manager ). The Designated Success Manager shall provide Client with reasonable support in addition to and beyond the maintenance and support of the Vendor System, as otherwise required herein or in a Work Order. 3. Emergency Telephone Support Service. Vendor will provide to Client and its Affiliates Emergency telephone support ( Emergency Support Service ) 24 X 7 ( Emergency Support Hours ). Emergency Support Service will include telephone and research time performed by Vendor s Emergency Support Service staff. An Emergency constitutes any Vendor outage lasting more than 5 minutes. General Telephone Support Service will be provided during regular business between 8:30AM and 5:30PM EST on Monday through Friday, excluding US Bank Holidays. Additional 24X7 Telephone Support may be purchased for an additional cost to be scoped out separately. Support Response Time for requests submitted by to support@bluetriangletech.com or telephone to will be (a) Weekday During Business Hours (8AM to 8PM Eastern Time), 1 Hour; (b) Weekday During Off Hours (8PM to 8AM Eastern Time), 8 Hours; Weekends or Holidays, 12 Hours. 4. Priority Levels, Response, and Resolution Commitments. Vendor shall measure, retain, report and post in a manner accessible to Client, true and accurate System Downtime in accordance with this Section 4. Vendor will provide Client with access to Vendor s posted uptimes report. For any Client reported Incidents and/or from Vendor proactive systems monitoring tools arising from any error in the Services, Vendor will resolve reported issues in accordance with the Priority Level as follows and continue to use reasonable efforts to resolve any Problems until any such errors are corrected and in accordance with the following chart below. 2/5

3 Defined Terms: Acknowledgment means the time from when Vendor is aware of an Incident or other alert to when Vendor acknowledges such Incident. Applicable Acknowledgment times are set forth in the chart below. Communication means a Vendor provided written electronic communication via , twitter, or other similar methods that shall arise in the future. Priority Level 1 Problem or P1 means a crucial core business function is severely impacted that will cause a significant loss of revenue in Client s business or prevents use of the Services. P1 examples include Client Site outage(s) or system application outage(s). P1 Resolution and Communication times are set forth in the chart below. Priority Level 2 Problem or P2 means a core business function that impacts the use or continued use of any one or more functions of the Services, or a condition that impedes Client s web site transactional activities. P2 examples include Client Site page error(s) visible to the end user. P2 Resolution and Communication times are set forth in the chart below. Priority Level 3 Problem or P3 means a core business function is affected but is not causing an immediate loss of Client s revenues or loss of data. P3 examples include Client Site navigation error(s) and application issues preventing the main function of measuring, reporting or alerting. P3 Resolution and Communication times are set forth in the chart below. Priority Level 4 Problem or P4 means a minor Incident or enhancement to the Services. A P4 example includes failure of the JavaScript to be served up, any HTTP errors for request for the tag or the reception of the data (not visible to the casual visitor) or failure of the data to successfully get stored in the Vendor s database. P4 Resolution and Communication times are set forth in the chart below. Resolution means a permanent resolution for an Incident. Resolution Time means the amount of time, from the time of Vendor s knowledge of an Incident, in which Vendor shall provide a Resolution to Client. Response Time means the amount of time, from the time of Vendor s knowledge of an Incident, in which Vendor shall respond to Client via telephone or other electronic means, acknowledging the Incident (applying from 8 am ET through 5:30 pm ET - Monday through Friday). For incidents within this time period, Vendor will make reasonable efforts to meet a Response Time of 2. For any Incidents occurring outside this time period, Vendor will make reasonable efforts to meet a Response Time of 4. For any non- critical/general Incidents occurring outside this time period, Vendor will make reasonable efforts to meet a Response Time of 12 Scheduled Downtime means downtime resulting from either a Force Majeure events or for regular maintenance, improvements and upgrades which Vendor has provided Client at least forty eight (48) advanced written notice and in aggregate such time shall not exceed: (a) a total of 8 per month and shall only occur on Wednesday evenings between 8 pm to 12 am, and Saturday mornings between 7 am to 11 am U.S. Eastern Time; and (a) a total of 1 hour per month during times other than such scheduled. During Scheduled Downtime, Client s homepage is still required to be available. System Downtime being any time the Services are unavailable, including unavailability due to planned and unplanned maintenance activities. Workaround Time means the amount of time, from the time of Vendor s knowledge of an Incident, in which Vendor shall provide a Workaround to Client. Workaround shall be defined as a temporary resolution of an Incident. For clarification, each Workaround shall be followed as soon as commercially practicable by a Resolution. Credits: The chart in Section 5 sets forth the credits associated with Vendor missing a time commitment associated with an Acknowledgement and/or a Resolution. 3/5

4 5. Client Reported Issue Service Level. Vendor targets to have its services available to Client and its Affiliates, if applicable, at least 99.9% of each month, excluding Scheduled Downtime. The following chart sets forth and defines the Priority Levels and appropriate action for each. Priority Level P1 (Critical) Acknowledgment Resolution Time Communication Credit 15 minutes Resources targeted to resolve within 4 P2 (High) 30 Minutes Resources targeted to resolve within 8 P3 (Medium) 8 Resources targeted to resolve within 72 P4 (Low) 12 Resources targeted to resolve as soon as feasible but within 10 days or as mutually agreed upon by both parties in writing. Every 30 minutes after Acknowledgment unless otherwise agreed by Client. Every 1 hour after Acknowledgment unless otherwise agreed by Client. At the beginning and at the end of every Client workday or at the time defined for action. Weekly until resolved. If an incident is not resolved within the Resolution Time, a credit/refund is assessed as follows: Hours in excess of the applicable Resolution Time: <2.5 hrs: 2% : 4% : 10% : 15% : 25% : 50% The above % are the % of the monthly Service fees (calculated accordingly to account for any annual/prepayments.) 6. Tag Delivery System Availability Service Level. Vendor commits to have the Vendor Tag Delivery System available to Client and its Affiliates, if applicable, at least 99.9% of each month, excluding Scheduled Downtime. Service Level Compliance Requirement Compliance Credit BTT Tag Delivery Uptime SLA 99.9 % Uptime as set forth above. If measured downtime (excluding Scheduled Downtime) exceeds 0.01% during a month, a credit equal to the Software as a Service fees for that month shall be issued to Client. BTT Portal Uptime SLA 99.9 % Uptime as set forth above. Hours in excess of the applicable Resolution Time: < 2.5 hrs: 2% : 4% : 10% : 15% : 25% : 50% The above % are the % of the monthly Service fees (calculated accordingly to account for any annual/pre-payments). 4/5

5 7. Termination Trigger. In addition to Client s other termination rights, in the event that Vendor fails to meet the SLAs metric for three (3) consecutive months or any four (4) months in any rolling twelve (12)-month period, then Client and its Affiliate shall have the right to terminate the Services by providing 30-days written notice to Vendor. 8. Tag Response Time. The average time required for the Services to respond (i.e., commence transmitting the Vendor s tag) after a request from a customer s system, measured over each 24 hour day, will not exceed 500 milliseconds from the time such request reaches Vendor s servers. 9. Device Compatibility. The Services will be compatible with the combination of the top ten (10) browsers, operating systems and devices, or those comprising of over two (2) percent of monthly traffic as evidenced by analytics. 10. Maintenance. Maintenance includes regular or preventative maintenance to perform upgrades, enhancements, and/or clean up to maintain Client s sites running at optimal performance and availability. All Maintenance requiring downtime shall be communicated and occur within Scheduled Downtime. Also, Emergency Maintenance may be performed to the extent necessary in conjunction with any Incident. 11. Outages: Any outage (not covered in Scheduled Downtime) communicated to customer less than three (3) days in advance will be considered an unplanned or an emergency outage. 12. Redundancy. The Services will operate with redundancy of the data store, application, tag and web servers. Contractor will use reasonable efforts to monitor the status and availability of all components associated with the delivery of the Services, and document problem reports for all service impacting issues encountered during the delivery of the Services. 13. Latency. The applicable latency requirements will be based upon the applicable Service provided and setting a baseline average over time with respect to such Service, and agreed in writing. 5/5