Common use of Availability and Performance Clause in Contracts

Availability and Performance. Uptime for SEVOCITY® shall be seven (7) days a week, twenty-four (24) hours a day (“Scheduled Uptime”), provided that upon notice to the Licensee at least seventy-two (72) hours in advance, CMI may provide for scheduled downtime for maintenance (“Scheduled Downtime”). CMI warrants to Licensee for the term of the Agreement that SEVOCITY® shall be available for use by Licensee as set forth in the Agreement in substantially its full core functionality for a minimum of 99.5% of the Scheduled Uptime on a monthly basis, excluding Scheduled Downtime (“Performance Criteria”). If the breach of warranty or failure results in Uptime being less than the specified Performance Criteria for two (2) consecutive months or for four (4) months in any consecutive twelve (12) month period, then Licensee’s sole remedy is as follows: (a) if failure to meet the Performance Criteria is caused solely by events within CMI’s commercially reasonable control, CMI shall credit the Licensee against the Monthly Service Fee due for that month at the rate of ten percent (10%) of such Monthly Service Fee for the affected month for every five percent (5%) of Scheduled Uptime by which the availability of the core functionality of SEVOCITY® in that month falls below ninety-five percent (95%) of Scheduled Uptime; (b) if failure to meet the Performance Criteria is caused in predominant part by events within CMI’s commercially reasonable control and in part by acts or omissions of third parties, failure of third party systems or equipment or other events beyond CMI’s commercially reasonable control, CMI shall credit the Licensee against the Monthly Service Fee due for that month at the rate of ten percent (10%) of its Monthly Service Fee amount for the affected month for every eight percent (8%) of Scheduled Uptime by which the availability of the substantial functionality of SEVOCITY® in that month falls below ninety-five percent (95%) of Scheduled Uptime; and (c) if failure to meet the Performance Criteria is caused in predominant part by events outside CMI’s commercially reasonable control or is caused in any degree by the fault, negligence or breach of Licensee, there shall be no credit to Licensee and no remedy or liability of CMI. Notwithstanding the foregoing, credits to Licensee shall not exceed fifty percent (50%) of the Monthly Service Fee prorated for the period of breach of warranty or failure.

Availability and Performance. Uptime for SEVOCITY® shall be seven (7) days a week, twenty-four (24) hours a day (“Scheduled Uptime”), provided that upon notice to the Licensee at least seventy-two (72) hours in advance, CMI may provide for scheduled downtime for maintenance (“Scheduled S cheduled Downtime”). CMI warrants to Licensee for the term of the Agreement that SEVOCITY® shall be available for use by Licensee as set forth in the Agreement in substantially its full core functionality for a minimum of 99.5% of the Scheduled Uptime on a monthly basis, excluding Scheduled Downtime (“Performance Criteria”). If the breach of SEVOCITY® Services Agreement/7040.28 (March 2021) warranty or failure results in Uptime being less than the specified Performance Criteria for two (2) consecutive months or for four (4) months in any consecutive twelve (12) month period, then Licensee’s sole remedy is as follows: (a) if failure to meet the Performance Criteria is caused solely by events within CMI’s commercially reasonable control, CMI shall credit the Licensee against the Monthly Service Fee due for that month at the rate of ten percent (10%) of such Monthly Service Fee for the affected month for every five percent (5%) of Scheduled Uptime by which the availability of the core functionality of SEVOCITY® in that month falls below ninety-five percent (95%) of Scheduled Uptime; (b) if failure to meet the Performance Criteria is caused in predominant part by events within CMI’s commercially reasonable control and in part by acts or omissions of third parties, failure of third party systems or equipment or other events beyond CMI’s commercially reasonable control, CMI shall credit the Licensee against the Monthly Service Fee due for that month at the rate of ten percent (10%) of its Monthly Service Fee amount for the affected month for every eight percent (8%) of Scheduled Uptime by which the availability of the substantial functionality of SEVOCITY® in that month falls below ninety-five percent (95%) of Scheduled Uptime; and (c) if failure to meet the Performance Criteria is caused in predominant part by events outside CMI’s commercially reasonable control or is caused in any degree by the fault, negligence or breach of Licensee, there shall be no credit to Licensee and no remedy or liability of CMI. Notwithstanding the foregoing, credits to Licensee shall not exceed fifty percent (50%) of the Monthly Service Fee prorated for the period of breach of warranty or failure.