APP as a Service Agreement
PLEASE READ THIS AGREEMENT BEFORE USING WEBMEDIA’S SERVICES. BY ACCESSING OR USING WEBMEDIA’S APP SERVICES, YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR WEBMEDIA’S SERVICE, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
This App Service Agreement (“Agreement”) is entered into between Customer and Webmedia App Development, (“Webmedia”), a business based in Scotland with its principal place of business at 101 Corbiehall, Bo’ness, Falkirk EH51 0AU. Webmedia and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
“Administrator User” means each Customer employee designated by Customer to serve as technical administrator of the App Services on Customer’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by Webmedia.
“Customer Content” means all data and materials provided by Customer to Webmedia for use in connection with the App Services, including, without limitation, customer applications, data files, and graphics.
“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Webmedia to Customer regarding the use or operation of the App Services.
Host” means the computer equipment on which the App is installed, which is owned and operated by Webmedia or its subcontractors.
“Maintenance Services” means the support and maintenance services provided by Webmedia to Customer pursuant to this App Agreement and Exhibit B. “Other Services” means all technical and non-technical services performed or delivered by Webmedia under this App Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the App Services and the Maintenance Services.
Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a Schedule and mutually agreed to by the parties. All Other Services will be provided on a non-work for hire basis. “Schedule” is a written document executed separately by Webmedia and Customer for the purpose of purchasing App Services under the terms and conditions of this App Agreement.
“App” means the object code version of any App to which Customer is provided access as part of the Service, including any updates or new versions. “App Services” refer to the specific Webmedia’s internet-accessible service identified in a Schedule that provides use of Webmedia’s app platform that is hosted by Webmedia or its services provider and made available to Customer over a network on a term-use basis.
“Subscription Term” shall mean that period specified in a Schedule during which Customer will have on-line access and use of the App through Webmedia’s App Services. The Subscription Term shall renew for successive 24- month periods in the case of monthly/annual or 6 monthly in the case of PAYG contract unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.
2. APP SERVICES
2.1 During the Subscription Term, Customer will receive a non-exclusive, non-assignable, royalty free, worldwide right to access and use the App Services solely for business operations subject to the terms of this Agreement.
2.2 Customer acknowledges that this Agreement is a services agreement and Webmedia will not be delivering copies of the App to Customer as part of the App Services.
Customer shall not, and shall not permit anyone to: (i) copy or republish the App Services or App, (ii) make the App Services available to any person other than authorized users, (iii) use or access the App Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the App Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the App used to provide the App Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the App used to provide the App Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the App Services or use the Documentation in order to build a similar product or competitive product.
Subject to the limited licenses granted herein, Webmedia shall own all right, title and interest in and to the App, services, Documentation, and other deliverables provided under this App Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Webmedia.
4. CUSTOMER RESPONSIBILITIES
4.1 Assistance. Customer shall provide commercially reasonable information and assistance to Webmedia to enable Webmedia to deliver the App Services. Upon request from Webmedia, Customer shall promptly deliver Customer Content to Webmedia in an electronic file format specified and accessible by Webmedia. Customer acknowledges that Webmedia’s ability to deliver the App Services in the manner provided in this App Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the App Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Webmedia exercises no control over the content of the information transmitted by Customer or end-users through the App Services. Customer shall not upload, post, reproduce or distribute any information to App or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.3 Unauthorized Use; False Information. Customer shall: (a) notify Webmedia immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Webmedia immediately and use reasonable efforts to stop any unauthorized use of the App Services that is known or suspected by Customer or any user, and (c) not provide false identity information to gain access to or use the App Services.
4.4 Administrator Access. Customer shall be solely responsible for the acts and omissions of its Administrator Users. Webmedia shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
4.5 Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Webmedia immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Webmedia immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any user, and (iii) not provide false identity information to gain access to or use the Service.
4.6 License from Customer. Subject to the terms and conditions of this App Agreement, Customer shall grant to Webmedia a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the App Services for Customer.
4.7 Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Webmedia or its licensors retain all ownership and intellectual property rights to the services, App programs, and anything developed and delivered under the Agreement.
Third party technology that may be appropriate or necessary for use with some Webmedia programs is specified in the program documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Webmedia and not under the Agreement.
4.8 Suggestions. Webmedia shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the App Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the App Services.
5. ORDERS AND PAYMENT
5.1 Orders. Customer shall order App Services pursuant to agrred schedule. All services acquired by Customer shall be governed exclusively by this App Agreement and the applicable Schedule. In the event of a conflict between the terms of a Schedule and this App Agreement, the terms of the Schedule shall take precedence.
5.2 Invoicing and Payment. Unless otherwise provided in the Schedule, Webmedia shall invoice Customer for all fees on the Schedule effective date. Customer shall pay all undisputed invoices within 30 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in UK Sterling and must be paid by Customer to Webmedia in Sterling.
5.3 Expenses. Customer will reimburse Webmedia for its reasonable, out-of-pocket or related expenses incurred in performing the Other Services. Webmedia shall notify Customer prior to incurring any such expense. Webmedia shall comply with Customer’s travel and expense policy if made available to Webmedia prior to the required travel.
5.4 Taxes. Webmedia shall bill Customer for taxes as a separate line item on each invoice where applicable. Customer shall be responsible for payment of all sales and taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services
6. TERM AND TERMINATION
6.1 Term of App Agreement. The term of this App Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Section.
6.2 Termination. Either party may terminate this App Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
6.3 Suspension for Non-Payment. Webmedia reserves the right to suspend delivery of the App Services if Customer fails to timely pay any undisputed amounts due to Webmedia under this App Agreement, but only after Webmedia notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the App Services shall not release Customer of its payment obligations under this App Agreement. Customer agrees that Webmedia shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the App Services resulting from Customer’s nonpayment.
6.4 Suspension for Ongoing Harm. Webmedia reserves the right to suspend delivery of the App Services if Webmedia reasonably concludes that Customer or an user’s use of the App Services is causing immediate and ongoing harm to Webmedia or others. In the extraordinary case that Webmedia must suspend delivery of the App Services, Webmedia shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Webmedia shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the App Services in accordance with this Section 6.4. Nothing in this Section 6.4 will limit Webmedia’s rights under Section 6.5 below.
6.5 Effect of Termination. (a) Upon termination of this App Agreement or expiration of the Subscription Term, Webmedia shall immediately cease providing the App Services and all usage rights granted under this App Agreement shall terminate. (b) If Webmedia terminates this App Agreement due to a breach by Customer, then Customer shall immediately pay to Webmedia all amounts then due under this App Agreement and to become due during the remaining term of this App Agreement, but for such termination. If Customer terminates this App Agreement due to a breach by Webmedia, then Webmedia shall immediately repay to Customer all pre-paid amounts for any unperformed App Services scheduled to be delivered after the termination date. (c) Upon termination of this App Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
7. SERVICE LEVEL AGREEMENT
The Service Level App Agreement (“SLA”) for the App Services is set forth in Exhibit C hereto. The SLA sets forth Customer’s sole remedies for availability or quality of the App Services including any failure to meet any guarantee set forth in the SLA.
8.1 Warranty. Webmedia represents and warrants that it will provide the App Services in a professional manner consistent with general industry standards and that the App Services will perform substantially in accordance with the Documentation. For any beach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and Termination.
8.2 WEBMEDIA WARRANTS THAT THE APP SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. WEBMEDIA DOES NOT GUARANTEE THAT THE APP SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WEBMEDIA WILL CORRECT ALL APP SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT WEBMEDIA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE APP SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY WEBMEDIA (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER WEBMEDIA NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL WEBMEDIA OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
9. LIMITATIONS OF LIABILITY
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF WEBMEDIA) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS APP AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS APP AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS APP AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.
10.1 Indemnification by Webmedia. If a third party makes a claim against Customer that the App Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Webmedia’s negligence or willful misconduct has caused bodily injury or death, Webmedia shall defend Customer and its directors, officers and employees against the claim. Webmedia shall have no liability for any claim based on (a) the Customer Content, (b) modification of the App Services not authorized by Webmedia, or (c) use of the App Services other than in accordance with the Documentation and this App Agreement. Webmedia may, at its sole option and expense, procure for Customer the right to continue use of the App Services, modify the App Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.
10.2 Indemnification by Customer. If a third party makes a claim against Webmedia that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Webmedia and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable legal fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
10.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
11.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this App Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this App Agreement, Customer Content is deemed Confidential Information of Customer. Webmedia App and Documentation are deemed Confidential Information of Webmedia.
11.2 Confidentiality. During the term of this App Agreement and for 5 years thereafter (perpetually in the case of App), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this App Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, App or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
11.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this App Agreement and the relationship of the parties, but agrees that the specific terms of this App Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this App Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
12. GENERAL PROVISIONS
12.1 Non-Exclusive Service. Customer acknowledges that App Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Webmedia’s ability to provide the App Services or other technology, including any features or functionality first developed for Customer, to other parties.
12.2 Personal Data. Customer hereby acknowledges and agrees that Webmedia’s performance of this App Agreement may require Webmedia to process, transmit and/or store Customer personal data or the personal data of Customer employees and Affiliates. By submitting personal data to Webmedia, Customer agrees that Webmedia and its Affiliates may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Webmedia to perform its obligations to under this App Agreement. In relation to all Personal Data provided by or through Customer to Webmedia, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU Directive 95/46/EC and laws implementing that Directive that regulate the processing of Personal Data and special categories of data as such terms are defined in that Directive.
Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content and using the Enabling App and Webmedia App. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Content, including any information which any Webmedia App User shares with third parties on Customer’s behalf.
Customer is solely responsible for determining the purposes and means of processing Customer Personal Data by Webmedia under this Agreement, including that such processing according to Customer’s instructions will not place Webmedia in breach of applicable data protection laws. Prior to processing, Customer will inform Webmedia about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions.
Webmedia reserves the right to provide the App Services from Host locations, and/or through use of subcontractors, worldwide. Webmedia will only process Customer Personal Data in a manner that is reasonably necessary to provide App Services and only for that purpose. Webmedia will only process Customer Personal Data in delivering Webmedia App.
Customer agrees to provide any notices and obtain any consent related to Webmedia’s use of the data for provisioning the App Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of Customer data.
12.4 Assignment. Neither party may assign this App Agreement or any right under this App Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this App Agreement to an acquirer of all or substantially all of the business of such party to which this App Agreement relates, whether by merger, asset sale or otherwise.
This App Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this App Agreement, provided, however, that such party shall not be relieved of any obligation under this App Agreement.
12.5 Notices. Except as otherwise permitted in this App Agreement, notices under this App Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this App Agreement.
12.6 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
12.7 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this App Agreement shall not constitute a waiver of any other or subsequent breach.
12.8 Severability. If any term of this App Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this App Agreement shall remain in full force.
12.9 Entire App Agreement. This App Agreement (including all Schedules and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this App Agreement. This App Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.
12.10 Survival. Sections 3, 6, and 8 through 12 of this App Agreement shall survive the expiration or termination of this App Agreement for any reason.
12.11 Publicity. Webmedia may include Customer’s name and logo in its customer lists and on its website. Upon signing, Webmedia may issue a high-level press release announcing the relationship and the manner in which Customer will use the Webmedia app service. Webmedia shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
12.12 Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the App Services. Customer agrees that such export control laws govern its use of the App Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, App programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
12.13 No Third Party Beneficiaries. This App Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
12.14 Independent Contractor. The parties have the status of independent contractors, and nothing in this App Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this App Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
12.15 Statistical Information. Webmedia may anonymously compile statistical information related to the performance of the Services for purposes of improving the App service, provided that such information does not identify Customer’s data or include Customer’s name.
12.16 Governing Law. This App Agreement shall be governed by the laws of the Scotlan, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
12.17 Compliance with Laws. Webmedia shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the App Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
12.18 Dispute Resolution. Customer’s satisfaction is an important objective to Webmedia in performing its obligations under this App Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this App Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it. 12.19 Signatures. This App Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this App Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.
SERVICE LEVEL AGREEMENT
App Services will achieve System Availability (as defined below) of at least 99.9% during each calendar year of the Subscription Term.
All other App Services will achieve System Availability (as defined below) of at least 99% during each calendar year of the Subscription Term. “System Availability” means the number of minutes in a year that the key components of the App Services are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from:-
- scheduled maintenance,
- events of Force Majeure in the App Agreement),
- malicious attacks on the system,
- issues associated with the Customer’s computing devices, local area networks or internet service provider connections, or
- inability to deliver services because of acts or omissions of Customer or any user.
Webmedia reserves the right to take the Service off-line for scheduled maintenance for which Customer has been provided reasonable notice and Webmedia reserves the right to change its maintenance window upon prior notice to Customer.
If Webmedia fails to meet System Availability in the year, upon written request by Customer within 30 days after the end of the year, Webmedia will issue a credit in Customer’s next invoice in an amount equal to 1% of the yearly fee for the affected App Services for each 1% loss of System Availability below stated SLA per App Service, up to a maximum of the Customer’s fee for the affected App Services. If the yearly fee has been paid in advance, then at Customer’s election Webmedia shall provide a credit to Customer to be used for additional services or term extension.
The remedy stated in this paragraph is Customer’s sole and exclusive remedy for interruption of App Services and Webmedia’s failure to meet System Availability.
Date Updated: 1 November 2019