The parties agree that the following terms and conditions will govern the delivery by WYNG of the Support Services and Availability of Services provided to CUSTOMER, as an addendum to the applicable Agreement between CUSTOMER and WYNG governing the Wyng Service.
1. SUPPORT SERVICES
“Error” means a failure, problem, or issue that causes: (a) the Wyng Service not to conform to the specifications in the Documentation; (b) unavailability of or intermittent outages of the Wyng Service; or (c) a degradation in the performance of the Wyng Service or components or features thereof.
“Error Correction” means revisions, modifications, alterations, or additions to the Wyng Service, bug fixes, or Workarounds provided by WYNG to Customer to resolve Errors.
“Workaround” means a temporary or short-term plan or solution to circumvent or overcome a problem or Error where the problem or Error is not actually eliminated until a permanent solution is found.
“Business Hours” means Monday through Friday 9am – 5pm US/Eastern, excluding official U.S. national holidays.
“Business Day” means Monday through Friday, excluding official U.S. national holidays.
1.2. Support and Maintenance.
(a) Level of Support. During the Term, WYNG will provide Support to CUSTOMER, based on the Level of Support set out in the applicable Agreement governing the services. The options are:
(i) Wyng Standard Support. Support includes email support and online knowledge base. A technical support representative will be available via email, and WYNG will make best effort to respond within forty-eight (48) hours upon an email request to support. However Standard Support does not include committed Action Timelines or eligibility for Service Credits.
(ii) Wyng Premium Support. Support includes email support and online knowledge base. A technical support representative will be available by email, and support cases are handled based on the Error severity levels described in Section 1.2(b).
(b) Error Severity Levels and Action Timelines.
(i) For Wyng Premium Support, error severities and action timelines will be determined by WYNG in accordance with the following:
*Measured from the time WYNG becomes aware of an Error, or a Support request is submitted to WYNG
(ii) Reporting. Upon request by CUSTOMER, WYNG will provide a report which outlines the Errors, issues, and resolution of each incident in which CUSTOMER requested WYNG to provide Support.
2. AVAILABILITY OF SERVICES
2.1. Definitions. Unless defined in this SLA, capitalized terms shall have the meanings set forth in the Agreement.
“Availability” means the percentage of a particular month (based on 24-hour days for the number of days in the subject month) that the Wyng Service is (a) fully available to and accessible by CUSTOMER, CUSTOMER Affiliates, and their End Users, and (b) fully operational and able to receive, process, store and transmit CUSTOMER Data. Availability shall be calculated by subtracting the total minutes of Downtime during the month from the total number of minutes in the month and dividing that resulting number by the total number of minutes in the month. The resulting number would then be multiplied by 100 to arrive at the Availability percentage. The following is the formula for this calculation of Availability: (Total # of minutes in month – Total # of minutes of Downtime in month)/Total # of minutes in month x 100 = % of Availability.
“Downtime” means such periods of time during which the Wyng Service is unavailable or unusable, and the minutes of Downtime include minutes during which the Wyng Service is unavailable due to Unscheduled Maintenance, but Downtime does not include minutes during which the Wyng Service or any component thereof are unavailable due to Scheduled Maintenance, Emergency Maintenance, or Force Majeure Events.
“Emergency Maintenance” means any maintenance for the purpose of addressing Severity Level 1 or Severity Level 2 Errors, with or without prior notice. In addition, any actions that WYNG takes in response to an imminent security threat or to protect CUSTOMER data will be considered Emergency Maintenance, with or without prior notice.
“Scheduled Maintenance” means any maintenance that occurs during the Maintenance Window and where WYNG has provided at least 72 hours’ prior notice to CUSTOMER’s designated support contact.
“Unscheduled Maintenance” means any maintenance that does not constitute “Scheduled Maintenance” or “Emergency Maintenance”.
“Force Majeure Event” means an event caused by a circumstance beyond a party’s reasonable control and that could not have been prevented or avoided by the exercise of commercially reasonable due diligence, including, but not limited to: natural catastrophes, war, public power outages, civil unrests and conflicts, acts of terrorism, Domain Name Server issues outside a party’s direct control, technical outages affecting Facebook, Instagram or other essential external systems outside a party’s direct control, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, and earthquakes, provided that: (a) such failure, default or delay will not be excused if the prevention of the same is an obligation under this Agreement; (b) the non-performing party and its personnel are not at fault in causing the delay or failure to perform; (c) the default or delay could not have been anticipated, prepared for, or prevented by the use of reasonable precautions commonly employed by persons and entities in the business of the affected party; and (d) the delay or failure to perform cannot reasonably be circumvented by the non-performing party through the use of alternate sources, workaround plans, or other means.
2.2. Service Levels.
(a) Availability SLA. The Availability for the Wyng Service for any given month will be 99.5% (“Availability SLA”).
2.3. Scheduled/Unscheduled Maintenance.
WYNG shall provide notice 72 hours in advance of any Scheduled Maintenance where Downtime is reasonably possible or expected. Scheduled Maintenance shall occur during the hours of 11 pm and 8 am U.S. Eastern Time (“Maintenance Window”). All notices of Scheduled Maintenance or Unscheduled Maintenance shall be provided to CUSTOMER’s designated support contact via the Wyng Status Tracking web page (https://status.wyng.com) or equivalent channel.
2.4. Service Measurement; Reporting.
WYNG shall monitor its compliance with the Availability SLA and will provide an updated report to CUSTOMER on a monthly basis containing sufficient data for CUSTOMER to determine WYNG’s compliance or non-compliance, via the Wyng Status Tracking web page (https://status.wyng.com) or equivalent channel. Notwithstanding the foregoing, CUSTOMER shall have the right to set up monitoring systems, or use third party systems to measure availability of the Wyng Service, Support, and any components thereof.
2.5. Credit Request and Payment Procedures.
(a) Eligibility. To be eligible for Service Credits:
(i) The Level of Support set out in the applicable Agreement governing the services must be Wyng Premium Support, and
(ii) CUSTOMER must promptly notify WYNG of each incident where CUSTOMER believes WYNG failed to meet the Availability SLA or the Action Timelines specified in Section 1.2(b)(i).
(b) Service Credit for Failure to Meet Availability SLA. Should WYNG fail to meet the Availability SLA, measured monthly during the Term, CUSTOMER shall receive a credit (each, a “Service Credit”) of 10% of the monthly fees or prorated equivalent (e.g., 1/12 of the annual fees, if paid annually) for the Wyng Service as set out in the applicable Order Document for each whole or partial point of shortfall in Availability relative to Availability SLA in that month (up to 30% of CUSTOMER’s monthly fees for the Wyng Service). Refer to table below for the Service Credit that should be applied:
(c) Requesting and Application of Service Credits. To receive a Service Credit, CUSTOMER may make a request by sending an e-mail message to the support email listed above. Any applicable Service Credits will be applied within two billing cycles after WYNG’s receipt and confirmation of CUSTOMER’s Service Credit request. In the event that the Agreement or applicable Order Document has been terminated or has expired, the Service Credit may be applied to a future purchase of Wyng Services by CUSTOMER within 12 months. No refund will be provided to CUSTOMER by WYNG for unused Service Credits.