Service Level Agreement

Last Updated: February 22, 2023

This OpenMetal, Inc. (“Company”) Service Level Agreement (“SLA”), as updated from time to time by Company in its sole discretion, supplements and its term and conditions are subject to Company’s Cloud Services Agreement (“CSA”), entered into with Customers and Company pursuant to the Order, and subject to the Universal Terms of Use (“UToU”) which are both incorporated herein by this reference. Capitalized terms used in this CSA but not defined herein shall have the meanings set forth in the Order, CSA, this SLA, and UToU as applicable.  In the event of a conflict between the terms of the Order, CSA, this SLA, UToU,  and/or any other agreement(s) governing the Cloud Services, the terms and conditions of this SLA shall apply in the following: the Order, CSA, this SLA, UToU, then any other agreements governing the Cloud Services, but only to the extent of such conflict.

  1. Physical Server Service Levels.  Customer acknowledges, understands and agrees that this SLA only applies to a physical server (i.e., a bare-metal/computer server with the motherboard, CPU, memory, hard drive, and network connection (“Physical Server”) provided by Company to Customer and does not apply to the virtual server/machine (i.e., a software-based environment that emulates all the functions of a physical server; used to deal with the virtualization of resources of a physical server) provisioned by Customer within the physical server, which virtual server/machine is the absolute and sole responsibility of Customer.
  1. Service Levels and Service Credits.
    1. The following chart sets forth the Cloud Services related to the Physical Server service levels to which this SLA applies, the applicable performance standard that Company seeks to meet or exceed in connection with the Cloud Services (the “Service Level”), and the percentage of amounts Customer will be eligible to receive a credit if Company fails to meet a Service Level (the “Service Credit”) based on a yearly uptime calculations as determined by Company.  Upon written notice to Company by Customer, Company agrees to promptly interact with Customer to determine the cause of any failure to meet a Service Level and determine methods of preventing it from happening again. Customer agrees to cooperate with Company in all reasonable respects in connection to any such inquiry, including providing access to Customer’s computer systems, if and as reasonably required under the circumstances.
      2. Monthly Uptime PercentageService Credit Percentage
      Less than 99.99% but equal to or greater than 99.0%10%
      Less than 99.0% but equal to or greater than 95.0%30%
      Less than 95.0%100%
    2. Service Credits shall be provided to Customer on the invoice following the time period in which the Service Level failure occurred. If no additional amounts are due and owing by Company, however, the Service Credits shall be refunded to Customer within thirty (30) days of the incident to which such Service Credit(s) relate.
    3. Notwithstanding anything set forth herein or in the CSA to the contrary, the Service Credits set forth herein are Customer’s sole and exclusive remedy in connection with any failure to meet Service Levels. The parties hereto acknowledge and agree that the Service Credits do not, in any way, constitute a penalty and/or liquidated damages.
    4. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENTS, CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES COMPANY’S MAXIMUM LIABILITY UNDER THIS REFERRAL AGREEMENT FOR ANY DAMAGES, LOSSES, COSTS AND CAUSES OF ACTIONS FROM ANY AND ALL CLAIMS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, QUASI-CONTRACT, STATUTORY OR OTHERWISE) SHALL NOT EXCEED THE ACTUAL DOLLAR AMOUNT PAID BY CUSTOMER FOR THE CLOUD SERVICES DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE, OR $5,000 U.S. DOLLARS, WHICHEVER IS LESS.
  1. Service Credits, Service Credit Requests and Payment Procedures.
    1. Service Credits are calculated as a percentage of Customer’s yearly bill total.
    2. Any Service Credit will apply only against future payments for the Cloud Services otherwise due by Customer. At Company’s sole  discretion, Company may issue a Service Credit to the payment method in the Account in which the unavailability occurred. Service Credits will not be issued as a refund or other payment from. A Service Credit will be applicable and issued only if the credit amount for the applicable yearly billing cycle total is greater than one United States dollar and 00/100 cents ($1.00 USD). Service Credits may not be transferred or applied to any other account.
    3. Service Credit Request.
      1. To receive a Service Credit, Customer must submit a written claim to servicecredit@openmetal.io. By submitting a request Customer agrees to the terms of the Privacy Policy regarding Customer’s personally identifiable information. The Service Credit request must be received by Company by the end of the second billing cycle after which the incident occurred.
      2. Customer’s failure to provide the requested and other information as required above will disqualify Customer from receiving a Service Credit. Unless otherwise provided in the Agreements, this SLA sets forth Customer’s sole and exclusive remedies, and Company’s sole and exclusive obligations, for any unavailability, non-performance, or other failure by Company to provide the Cloud Services.
  1. SLA Exclusions. Notwithstanding anything set forth herein to the contrary, Customer shall not receive a Service Credit for any failure to meet a Service Level to the extent caused by any unavailability, suspension or termination of the Cloud Services, or any other Cloud Services performance issues, directly or indirectly: (i) caused by Customer’s (or any of its employees’ or agents’) failure to comply with all policies, procedures, instructions, and requirements for the applicable Cloud Service; (ii) any failure of power, facilities, equipment, systems, or connections not provided by Company; (iii) caused by factors outside of Company’s reasonable control, including any force majeure event, Internet access or related problems beyond the demarcation point of the Cloud Services; (iv) that result from any actions or inactions of Customer, including failure to acknowledge a recovery volume or respond to resource health concerns; (v) that result from Customer’s equipment, software or other technology (not provided by Company under the Order); (vi) bandwidth saturation or other resource exhaustion or outage caused by malicious traffic such as viruses, worms, trojan horses, denial of service (DOS) attacks, etc., not introduced by Company; (vii) service suspension for non-payment of any amounts due by Customer; (viii) arising from our suspension or termination of Customer’s right to use the applicable Cloud Services in accordance with the Agreements; or (ix) any material breach of the CSA by Customer. If availability is impacted by factors other than those used in our Monthly Uptime Percentage calculation, then Company may issue a Service Credit considering such factors as determined in Company’s sole discretion.