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Service Level Agreement (USA)
Last updated: 01.03.2024
This Service Level Agreement (the “SLA”) is made by and between Flip GmbH (“Provider”) and [CUSTOMER NAME] (“Customer”) (each a “Party” and together, the “Parties”) and forms a part of the Flip Customer Agreement (US) between Customer and Provider dated [DATE], including without limitation the Order entered into between the Parties, all Annexes thereto, and all documents incorporated therein, (collectively, the Order, Annexes, and incorporated documents, the “Main Contract”). This SLA shall be incorporated into the Main Contract as Annex and shall form an integral part of the Main Contract between Provider and Customer. In case of a conflict between the SLA and the Main Contract, the terms of this SLA shall prevail to the extent of such conflict. Capitalized terms that are used but not defined herein shall have the meanings assigned to them in the Main Contract.
The current version of this SLA can be found here: www.getflip.com/legal and may be amended or updated by Provider from time to time in its sole discretion and without prior notice. Such changes shall apply automatically, provided that the changes do not have a material adverse effect on Customer.
This SLA does not apply to Services provided free of charge or to pilot projects or test deployments.
All performance specifications in this SLA refer to the quality owed by the Provider of the software service offered to the customer for use at the transfer point of the data network or service operated by the provider. Impairments that are beyond the control of the Provider are not taken into account. This is the case, for example, with the customer's IT systems, the general Internet infrastructure, global cloud disruptions and the Internet domains administered by the contractor.
1. Additional Defined Terms
1.1 “Business Day” means a day other than Saturday, Sunday, or a day on which federal banks in the US are closed for business.
1.2 “Emergency Maintenance” means critical changes to the Software Service that cannot wait for Scheduled Maintenance. These changes could destabilize the Software Service if not addressed expeditiously. Emergency Maintenance may include security related issues or technical problems that could impact the availability of the Software Service.
1.3 “Scheduled Maintenance” means Provider’s scheduled routine maintenance for the Software Service including to fix non-critical errors and implement Software Service changes.
1.4 “Uptime” means the time the Software Service is available during each calendar month.
2. Priorities
2.1 If the Provider's services do not correspond to the values specified in this Service Level Agreement, the Provider shall, in the event of impairment of both system availability and service quality, first restore the data security of the services, the system availability of the services, then the data throughput owed and the response time behavior. The Provider may change the priorities if this is technically necessary or expedient.
3. Scheduled Maintenance
Provider is entitled to perform regular Scheduled Maintenance work on Saturdays, Sundays and national holidays (i.e. where federal banks in the US are closed for business) between midnight and 11:59 PM (ET), with the total not to exceed 16 hours per calendar month. Scheduled Maintenance work may also be carried out from Monday to Friday outside 8 pm ET and 6 am ET (“Business Hours”) upon at least 1 business day’s notice by Provider.
4. System Availability
4.1 Provider will use commercially reasonable efforts to meet or exceed an Uptime of 99.5 % per calendar month (the “Uptime Commitment”).
4.2 The system is available if the following conditions are met at the same time:
a) the HTTP request is answered with HTTP status code 200
b) the content of the JSON response contains the key "status" with the value "ok"
c) the response is delivered in less than 3 seconds.
4.3 The calculation of Uptime will not include unavailability to the extent due to the following exclusions:
4.3.1 Customer’s use of the Service in a manner not authorized by the Main Contract;
4.3.2 Scheduled Maintenance;
4.3.3 Maintenance or other services agreed with Customer;
4.3.4 Emergency Maintenance;
4.3.5 Customer specifications, non-availability of Customer equipment or other interruptions caused by Customer (e.g. failure of Customer to cooperate);
4.3.6 Customer blocking console or remote access;
4.3.7 General Internet problems;
4.3.8 Force majeure events or other factors outside of Provider’s reasonable control;
4.3.9 Customer software, applications, data, equipment, network connections or other infrastructure;
4.3.10 Third-party platforms and other third party systems, acts or omissions; and
4.3.11 public cloud infrastructure failures.
4.3.12 At the HTTP endpoint https://<organization domain>/status address is not reachable.
5. Report of Incidents, Restoration of Services
5.1 Customer shall report any incidents that are to be handled in accordance with this SLA as by creating a ticket via: https://support.getflip.com/hc/en-gb/requests/new.
Incidents may be reported during the following service hours: Monday – Sunday: 24 hours a day. Fault reports received will be confirmed to the customer in writing (email or ticket). The persons authorized to report faults and make decisions regarding the Flip System are described in detail in Section 5.2.
5.2 Customer shall only report incidents via employees who are adequately trained and authorized. When reporting an incident, Customer shall (a) provide to Provider a description of the incident in accordance with the classifications in Section 5.3 below, (b) identify Customer contact persons, with the relevant email and telephone number, who Provider may contact directly at any time during the duration of the incident.
5.3 Incidents subject to the provisions of this SLA shall be classified as follows:
| Priority | Classification | Description | Reaction Time (R) |
|---|---|---|---|
| I. | highly critical / urgent | Total failure as a result of which the quality of the Software Service is impaired to such an extent that the use of the Software Service in accordance with the Flip Services Online Terms is not possible or very significantly restricted; Major malfunctions that result in the loss/failure of all or essential components or data and that affect all or almost all Authorized Users. | R = 6 hours |
| II. | high | Important subsystems or core functionalities of the Software Service are not available; the contracted-for use of the Software Service is significantly restricted or impeded; a large number of Authorized Users affected. | R = 12 hours |
| III. | normal | Specific material functionality of the Software Service is not available; the contracted-for use of the Software Service is partially restricted or impeded; a large number of Authorized Users affected. | R = 1 Business Day (during Business Hours) |
| IV. | low | Specific functionality of the Software Service is not available; the contracted-for use of the Software Service is partially restricted or impeded; a small number of Authorized Users affected. | R = 3 Business Days (during Business Hours) |
5.4 If, after Customer’s initial report of an incident, the reported incident reaches a higher priority level, Customer must inform Provider immediately.
5.5 The response time (R) is calculated from the time Provider receives Customer's complete incident report. Priority may be re-assigned by Provider, acting reasonably, based on the criteria in Sec. 5.3.
5.6 Within the specified reaction times (R), Provider shall, upon receipt of a proper incident report from Customer, issue a response to Customer and if possible, begin with the analysis/repair of the incident. The agreed response time does not indicate the repair of the incident within a specific time.
5.7 Incidents which are attributable to an impairment of data transmission outside the data network operated by Provider (e.g. due to a power line failure or incident at other providers or telecommunications providers) or to undue use of the provided system capacities (e.g. due to an excessive access number by Customer) are not subject to repair by Provider under this SLA.
5.8 Incidents not defined in Sec. 5.3 shall be governed exclusively by the Main Contract.
6. Reports, Contact Persons, Assertions of Claims
6.1 Customer may access, and shall be response for checking, system availability information for the Software Service at https://status.flipapp.de/.
6.2 Customer shall provide Provider with up-to-date contact information (name, email, phone) of the responsible contact persons to whom any communication in connection with this SLA (e.g. announcements of maintenance work, transmission of requested SLA reports and communication in emergency situations) shall be addressed. Customer ensures that these contact persons can be reached at any time and are adequately trained and authorized.
6.3 Customer shall only be entitled to the rights under Sec. 7 and Sec. 8 if he notifies Provider in writing of their assertion without undue delay, at the latest within two weeks after the event giving rise to these rights has occurred.
7. Remuneration in the Event of an Incident
7.1 If there is a failure of the Software Service to meet the Uptime Commitment in a particular calendar month, and such failure is reported by Customer and verified by Provider in accordance with this SLA, Customer will be entitled to a credit that is based on the monthly fees due for the affected Software Service in such calendar month (hereinafter “Service Credit”) as follows:
| System Availability | Service Credit |
|---|---|
| 99% - < 99.5% | 5% of monthly fees |
| 98% - < 99% | 10% of monthly fees |
| 96.5% - < 98% | 15% of monthly fees |
| 95% - < 96.5% | 20% of monthly fees |
| < 95% | 25% of monthly fees |
7.2 Service Credits can be credited immediately and at the latest within two months of the invoice that follows the specified unavailability following the specified unavailability. Service Credits will be applied to the invoice that is issued after such Service Credit is approved by Provider in accordance with this SLA. Service Credits may only be applied to invoices issued pursuant to the Main Contract and are not redeemable for cash or any other compensation.
8. Termination for unavailability
In the event Provider fails to meet the Uptime Commitment such that Customer is eligible (e.g. requests in accordance with this SLA) to receive Service Credits in 2 consecutive months in any rolling 12-month period, Customer may terminate the Main Contract by providing Provider with written notice thereof no later than 8 weeks after the event giving rise to the termination right, with such termination to be immediately effective.
9. Sole Remedy
The Service Credits in Section 6 of this SLA, and the termination right, if applicable in Section 7 of this SLA shall be Customer’s sole and exclusive remedy, and Provider’s sole obligation and liability for Provider’s failure to meet the Uptime Commitment.
10. Recovery Point Objective, Recovery Time Objective
10.1 Provider shall properly and regularly backup Customer’s data. Backups shall be carried out with a frequency of 24 hours.
10.2 In the event of a loss of Customer data, Provider shall, upon request of Customer, restore Customer’s data from the backup within less than four hours during the business hours of Provider.