MASTER SUBSCRIPTION SERVICE AGREEMENT
(Reseller/Partner Purchases)
This Master Subscription Service Agreement (the “Agreement”) is effective as of 1) the last date of signature below, or 2) if there is no signature block below, then the Order Form Effective Date of the Order Form that references this Agreement (“Effective Date”). This Agreement is made between Cresta Intelligence, Inc., a Delaware corporation, with a principal place of business at 540 Bryant Street, Suite 200, Palo Alto, California 94301 (“Cresta”), and Customer. Cresta and Customer may be referred to each as a “Party” and collectively as the “Parties”. The Parties agree:
1. DEFINITIONS
1.1 Affiliates means any corporation, partnership, or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by, or is under common control with a Party. For this definition, “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2 Cresta Content means all Content provided by Cresta to Customer through Customer’s use of the Service.
1.3 Content means text, images, documents, materials, and all other forms of data or communication.
1.4 Customer means (i) the entity identified in the Order Form and its Affiliates, excluding any Affiliate that is a party to a separate written agreement with Reseller or Cresta for Cresta products or services.
1.5 Customer Content means all Content Customer or its Users provide and use with the Services.
1.6 Documentation means the standard documentation for the Service Cresta provides to assist its customers in using the Services, including user and system administrator guides and manuals.
1.7 Implementation Service(s) means implementation and configuration tasks defined in an Order Form.
1.8 Order Form means each ordering document entered into by Cresta and Reseller for the benefit of Customer.
1.9 Reseller means the party authorized to resell the Services on behalf of Cresta.
1.10 Services means Implementation Service(s) and Subscription Service(s).
1.11 Subscription Service(s) means Cresta’s proprietary subscription-based solution as further described in an Order Form.
1.12 Users means individuals authorized by Customer to use the Subscription Services. Users may include employees or independent contractors of Customer or its Affiliates.
2. PROVISION OF SERVICES
2.1 Services. Cresta shall provide Customer with the Services specified in an Order Form. Any conflict between the terms in this Agreement and any Order Form shall be resolved in favor of the Order Form. Purchases are not contingent on the delivery of any future functionality or features and do not depend on any oral or written comments made by Cresta regarding future functionality or features.
2.2 License Grant. Subject to the terms of this Agreement, Cresta grants to Customer, solely during the term of the applicable Order Form and for Customer’s internal business purposes, a non-exclusive, non-transferable license to 1) access and use the Subscription Service and 2) use the Implementation Services solely with the Subscription Services, as further described in the applicable Order Form. The licenses granted in this section are restricted to use by Customer and its Users and do not include the right to use the Services on behalf of any third party.
3. RESELLER RELATIONSHIP
3.1 Customer will purchase the Services directly from Reseller pursuant to a separate agreement specifying price, payment, and other commercial terms. Cresta is not a party to that separate agreement but will provide the Services set forth in the applicable Order Form pursuant to this Agreement. Customer must submit any claims for refunds or service credits under this Agreement to Reseller. Reseller is not an agent or Affiliate of Cresta. Reseller is an independent entity, and not an agent or Affiliate of Cresta, and does not have the authority to bind Cresta, make representations or warranties on Cresta’s behalf, or otherwise change the Agreement.
3.2 Cresta will not be liable for reasonably relying on the accuracy and reliability of written information provided by Reseller in making any decision that would give Cresta grounds to suspend and/or terminate the Services. Cresta may, at its sole discretion, suspend and/or terminate Customer’s orders and/or use of the Services if Reseller fails to pay any fee or other amount payable by Reseller on its due date. If (a) Reseller terminates any applicable Order Form(s), (b) Cresta terminates applicable Order Form(s) for good cause, or (c) the applicable resale agreement between Cresta and Reseller is terminated, Cresta may, but is not obligated to, directly provide the affected Services to Customer pursuant to this Agreement for mutually-agreed fees.
4. CONFIDENTIALITY
4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature, including the Services. The receiving Party shall hold in confidence and not disclose (or permit its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, or employee (collectively “Representatives”) who has a need to know such Confidential Information for the receiving Party’s performance under this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its or their own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The terms and pricing of this Agreement are Confidential Information and Customer shall not use the Services to conduct comparative analysis, evaluations, or product benchmarks regarding the Services and will not publicly post any analysis or reviews of the Services without Cresta’s prior written approval. The receiving Party shall promptly notify the disclosing Party upon learning of a breach or threatened breach of the restrictions contained in this Section and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights. Confidential Information remains the intellectual property of the disclosing Party.
4.2 Exclusions. Information is not Confidential Information if such information: (i) is known by the receiving Party before receipt from the disclosing Party, with no obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without using the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information under the requirements of law, legal process or government regulation, provided that a protective order is in place or it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
4.3 Injunctive Relief. The Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, besides any other remedy the disclosing Party may seek an injunction or injunctions to restrain such use.
5. LIMITED WARRANTY
5.1 Subscription Service Warranty. Cresta warrants that, during the term of any Order Form for the Subscription Service, the Subscription Service will materially conform with the Documentation. Cresta makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Customer must specify the non-conformity and Cresta will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. Customer will provide Cresta with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any non-conformity. These remedies are Customer’s sole remedies for breach of the above warranty. Such warranty shall only apply if the Subscription Service has been utilized by Customer in accordance with the Order Form and this Agreement. The warranties set forth in this section shall not apply if the non-conformity is caused by Customer, Reseller, or any third party product.
5.2 No Other Warranty. CRESTA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CRESTA. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
6. LIMITATION OF LIABILITY
6.1 Consequential Damage Waiver. Except as may arise out of either Party’s breach of Confidentiality, or misuse of the other Party’s intellectual property rights, neither Party will be liable to the other or any third party for any special, indirect, incidental, consequential, or exemplary damages, including lost profits and costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it knows the possibility of such damages.
6.2 Limitation of Liability. Except as may arise out of breach of Confidentiality, misuse of intellectual property rights, or indemnification obligations, the total cumulative liability of a Party for any claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the amount paid or owed by Customer to Cresta under the Order Form which forms the subject of the claim during the six (6) month period immediately preceding the event giving rise to the claim.
7. TERM
7.1 Term. This Agreement will commence on the Effective Date and will continue until terminated as provided below. The term of the Services will be specified in the Order Form. Cresta may, upon providing written notice at least sixty days prior to the renewal date of the applicable Order Form (with email sufficing), change the rates, applicable charges, and usage policies for the Services.
7.2 Termination. Either Party may terminate this Agreement or any Order Form (i) if there is a material breach of this Agreement or an Order Form by the other Party (including without limitation Customer’s failure to pay Reseller any fees due for the Services) which is not cured within thirty (30) days of written notice from the non-breaching Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party if at such time there are no outstanding Order Forms then in effect. All rights and obligations of the Parties which are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any Order Form, Cresta shall no longer provide the Services to Customer and Customer and its Users shall cease using the Services. If termination is for Cresta’s breach, Customer shall pay Cresta for all fees that had accrued before the termination date; otherwise, Customer shall pay all invoices and amounts due. Except as stated herein, termination of this Agreement by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Upon termination, Cresta will have no further obligation to make available Customer Content and may delete the same.
8. OWNERSHIP; USE OF CONTENT; OBLIGATIONS
8.1 Customer Content. Except with regards to anonymized or aggregated Customer Content as specified in Section 8.2, Customer retains all ownership and intellectual property rights in all Customer Content.
8.2 Customer Content License Grant. By providing Customer Content on or through the Services, Customer grants to Cresta a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, and sublicensable right and license to use and modify the Customer Content as required for Cresta and its subcontractors and service providers to provide, improve, and enhance the Services, respond to service or technical problems, and to operate its business. Customer represents and warrants to Cresta it has and will have all necessary rights to provide the Customer Content to Cresta, including without limitation obtaining any necessary third-party consents to provide such Customer Content. During the term of this Agreement and thereafter, Cresta may use anonymized or aggregated 1) Customer Content and 2) data about Customer’s or its Users’ access and use of the Services, to provide, improve, and market the Services.
8.3 Ownership of the Service and Cresta Content. As between Cresta and Customer, all right, title, and interest in the Services and Cresta Content and any derivatives or copies thereof (including any patents, copyrights, trade secret rights, registered and/or unregistered trademarks, trade names and associated goodwill, and moral rights) (“Intellectual Property Rights”) are and shall remain Cresta’s or its licensors’. All rights not expressly granted to Customer in this Agreement are reserved to Cresta and its licensors and Licensee may not access or use the Services for any purpose or use not expressly defined in this Agreement. The Services and Cresta Content are licensed, not sold, and Customer acquires no ownership of, or other Intellectual Property Rights in, the Services or Cresta Content.
8.4 Cresta Content License Grant. Subject to Customer’s compliance with this Agreement, during the term of the applicable Order Form, Cresta grants to Customer a limited, worldwide, non-exclusive, non-transferable, royalty-free right to use the Cresta Content solely in connection with Customer’s licensed use of the Services.
8.5 Customer Obligations. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Unauthorized use, resale, or commercial exploitation of the Services is prohibited. Customer is responsible for procuring and maintaining Customer’s infrastructure, network connections, and access to the Services. Customer and its Users shall not (and shall allow no third party to): 1) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Services, 2) access the Services to build a competitive product or service or copy ideas, features, functions, or graphics of the Services, 3) copy, license, sell, transfer, make available, lease, time-share, distribute, or assign its licenses or the Services to any third-party, 4) upload, or otherwise transmit any Customer Content that is unlawful, offensive, or otherwise objectionable; 5) upload or otherwise transmit, display, or distribute any Customer Content that infringes any proprietary or intellectual property rights of any person; 6) upload or otherwise transmit any material that contains software viruses or any other harmful code, files, or programs; 7) interfere with or disrupt the Services or networks connected to the Services; or 8) violate any law or regulation. Customer shall be liable for any breach of this Agreement by any of its Users. Cresta may terminate any User’s right to access the Services if such User has violated this Agreement. Customer is solely responsible for all Customer Content. Customer shall maintain backups of all Customer Content and Cresta shall not be liable for losing Customer Content. Cresta does not guarantee the accuracy, integrity, or quality of Customer Content.
9. INDEMNIFICATION
9.1 Cresta Indemnification. Cresta will indemnify, defend and hold Customer and its Affiliates harmless against any costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred relating to a third party claim against Customer or any of its Affiliates alleging that Customer’s use of the Services infringes any United States patent, copyright, or trademark. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services in violation of this Agreement or applicable law, (b) use of the Services after Cresta notifies Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services or Customer Content, (d) modifications to the Services made other than by Cresta, (e) the combination, operation, or use of the Services with software or equipment which Cresta did not provide; or (f) compliance by Cresta with Customer’s requirements or specifications. If the Services are held to infringe, Cresta will, at its own expense, in its sole discretion, use commercially reasonable efforts to either (a) procure a license that will protect Customer against such claim without cost to Customer; (b) replace the Services with non-infringing Services without material loss of functionality; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Form and refund to the Reseller any prepaid unused fees paid to Cresta for the infringing Services. Providing Reseller with refunds of any pre-paid unused fees alleviates any responsibility by Talend to ensure the refund returns to the Customer. The rights and remedies granted to Customer under this Section 9.1 state Cresta’s entire liability, and Customer’s exclusive remedy, regarding any claim of infringement of the intellectual property rights of a third party.
9.2 Customer Indemnification. Customer shall indemnify, defend, and hold Cresta and its Affiliates harmless against any Losses resulting from a claim, suit, action, or proceeding brought by any third party against Cresta or any of its Affiliates that arises out of or results from a claim (i) alleging that the Customer Content, or any use thereof, infringes the intellectual property, proprietary, or privacy rights of others, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 8.4 or violation of any law.
9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit, or proceeding for which indemnity is claimed, but a late notice will not remove the indemnifying Party’s obligation unless prejudice is shown, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. The indemnified Party shall provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
10. GENERAL PROVISIONS
10.1 Entire Agreement and Controlling Documents. This Agreement, and all Order Forms, contains the entire agreement between the Parties regarding the subject hereof, and supersedes all prior or contemporaneous proposals, understandings, and any other communications (whether written or oral) between the parties and is binding upon the Parties and their permitted successors and assigns. The Agreement will prevail over the terms and conditions any agreement between Reseller and Customer, even if such agreement purports to modify or supersede this Agreement. Only a written instrument signed by the Parties may amend this Agreement or an Order Form. Any inconsistent or conflicting terms in any purchase order issued by Customer are rejected and shall be of no force or effect, even if the order is accepted by Cresta. This Agreement shall be construed and interpreted fairly, under the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
10.2 Assignment. This Agreement shall be binding upon and to the benefit of Cresta and Customer and their permitted successors and assigns. Either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of stock or substantially all of its assets. Otherwise, neither Party may assign this Agreement without the prior written consent of the other Party, and any attempted assignment without such consent will be void. Cresta may use independent contractors, sub processors, or subcontractors to assist in the delivery of Services. Cresta shall be liable for the actions or omissions of such independent contractors, sub processors, or subcontractors.
10.3 Governing Law. This Agreement and any claim arising between the Parties shall be governed by and construed under the laws of the State of California without regard to its conflict of law provisions. Any legal action or proceeding between the Parties or regarding this Agreement shall be brought exclusively in the state or federal courts in San Francisco, California. The prevailing Party shall be entitled to recover its reasonable attorneys’ fees.
10.4 Relationship of the Parties. The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties is created by this Agreement.
10.5 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused if performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, epidemics, pandemics, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
10.6 Certification and Audit. At Cresta’s written request and no more than once every twelve (12) months, Customer shall provide Cresta with a signed certification verifying that the Service is being used under this Agreement. Cresta may perform an audit of Customer’s use of the Service and Customer’s compliance with this Agreement and an applicable Order Form. Any such audit shall be made at Cresta’s expense unless the audit shows an underpayment or over use of over 5% of the period audited in which case, Customer shall reimburse Cresta’s expense for the audit.
10.7 Modifications to Service. Cresta may modify the Services as long as such modifications do not materially degrade the functionality or features of the Services.
10.8 Notices. All notices will be in writing and deemed given when delivered to the relevant party’s address set forth in an Order Form, and with respect to Cresta with copy to the legal department at [email protected]. Notices by Cresta pertaining to the Services (e.g., operation or support) may be provided electronically.
10.9 No Third-Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement.
10.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original. Signatures to this Agreement and Order Forms may be electronic and transmitted by scanned documents or electronic signature providers.
10.11 Waiver and Severability. Performance of any obligation required by a Party may be waived only by a written waiver signed by the other Party. Each waiver is only effective for the specific obligation waived. The failure of either Party to exercise any of its rights under this Agreement is not a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of the other provisions, and this Agreement will be construed as if such invalid or unenforceable provision(s) were omitted.
11. SECURITY REQUIREMENTS
11.1 Privacy/Security Requirements. If Cresta will have access to Customer’s Systems and/or Nonpublic Personal Information, Cresta shall conform to the SOC 2 Type II, ISO/IEC 27001:2013, and ISO/IEC 27701:2019 standards. “Customer’s Systems” means Customer’s internal computer systems, and “Nonpublic Personal Information” means all personally identifying information, behavioral or demographic information, sensitive financial information, biometric information, or other information, disclosed by Customer, or which Cresta or Cresta Personnel acquire, access or derive in connection with this Agreement that, either individually or when combined with other information, could identify, contact or derive information specific to a particular individual, such as that individual’s identity, first and last name, social security number, government issued identification information (including driver’s license number, passport number, and military ID), telephone number, credit card number, payment card data, postal address, e-mail address, account information, payroll information, financial information, health information, employee identification number, criminal or employment history, mother’s maiden name, birth date or other factors specific to that individual’s physical or financial identity.
EXHIBIT A
SERVICE LEVEL AGREEMENT
1. Definitions. All capitalized terms not defined below shall have the meaning in the Master Subscription Services Agreement.
1.1. “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 5-minute periods during each calendar month in which the Subscription Service was in the state of “Service Unavailable.” Any downtime occurring prior to a successful Service Credit claim cannot be used for future claims. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion (defined below).
1.2. “Error(s)” means any verifiable and reproducible failure of the Service to materially conform to the specifications in the Documentation unless such failure (a) results from Customer’s misuse or improper use of the Services; (b) does not materially affect the operation and use of the Subscription Services; (c) results from the modification by Customer or any third party of the Services in a fashion not contemplated by the Agreement; (d) results from Customer’s failure to implement in a timely manner any improvements or modifications to the Services provided to Customer; (e) results from Customer’s failure to use minimum system configurations as stated in the Documentation, or (f) results from hardware, software, internet access, cloud services and all other systems and infrastructure Customer is responsible to provide for using the Services.
1.3. “Service Credit” is a dollar credit that Cresta may credit back to Customer under an Order Form for Services.
1.4. “Service Unavailable” means that access to the Subscription Service is “Unavailable” to Customer.
1.5. “Severity 1 Error or PO (Critical)” means the applicable Subscription Service is non-functional or inoperative causing a severe impact on customer’s business operations, with no workaround available.
1.6. “Severity 2 Error or P1 (High)” means important features are unavailable causing significant or ongoing interruptions of use of critical functions with no acceptable workaround available.
1.7. “Severity 3 Error or P2 (Medium)” means important features are unavailable but workaround is available, causing minor or no interruptions of customer’s business operations.
1.8. “Severity 4 Error P3 (Low)” means any general questions, enhancement requests, or minor issues causing little or no interruptions on customer’s business operations.
1.9. “Workaround” means a temporary solution to an Error that Cresta has implemented, or enabled Customer to implement and that allows the Subscription Service to regain functionality under the Documentation.
1.10. “Unavailable” means the Subscription Service may not be accessed or is severely restricted for a period of over 5 minutes due to circumstances within Cresta’s control.
2. Support Services.
2.1 Support Business Hours. Cresta’s technical support business hours are Monday through Friday 8AM- 6PM Pacific Time.
2.2 Customer Responsibilities.
a) Errors. Customer agrees to notify Cresta in writing promptly following the discovery of any Error via [email protected] or using the “Live Chat” option on Customer’s Cresta interface. Upon discovery of an Error by Customer, Customer agrees, if requested by Cresta, to submit promptly to Cresta a listing of output and any other data, including the operating conditions under which the Error occurred or was discovered, that Cresta may reasonably require to reproduce the Error. Such listings, data, and requested information shall be deemed Cresta’s Confidential Information.
b) Point of Contact. Customer may identify up to two (2) primary points of contact for the communication of Errors or support and maintenance issues to Cresta.
2.3 Cresta Support Responsibilities.
a) Response time and resolution time for Errors.
Severity | Response Time | Resolution Time |
Severity 1 Error or PO (Critical) | 30 Minutes | 3 hours |
Severity 2 Error or P1 (High) | 60 Minutes | 12 hours |
Severity 3 Error or P2 (Medium) | 24 hours | 5 business days |
Severity 4 Error or P3 (Low) | 2 business days | No stated resolution time. |
The Response Time is the time to an acknowledgement to Customer of the service request during the Support Business Hours. Resolution Time is time to provide a Workaround during the Support Business Hours. If a Severity 1 Error is not resolved with the Resolution Time, the issue will be escalated to management until a Workaround is provided.
b) Exclusions from Support Services. Cresta shall have no obligation to provide support services for any Customer hardware, software, or third party services and systems, such as cloud testing services used by Customer for use of the Services or for any failure or defect in the Services caused by: (i) the improper use, alteration, or damage of the Services by Customer or persons not authorized by Cresta; (ii) modifications to the Services not provided or approved in writing by Cresta; (iii) hardware, applications or other software not provided or approved in writing by Cresta or that do not meet minimum configuration requirements as stated in the Documentation; (iv) hardware or internet failures.
c) Additional Services. If Cresta performs services at Customer’s request beyond the support services in this exhibit, Customer shall be billed at Cresta’s then current charges for such services. Cresta shall be under no obligation to provide any such services.
3. Service Commitments and Service Credits
3.1 Cresta will use commercially reasonable efforts to make Services available with a Monthly Uptime Percentage (defined below) of at least 99%, excluding planned maintenance.
3.2 If the Monthly Uptime Percentage drops below 99% during any calendar month, Customer is eligible to receive a Service Credit in accordance with the table below. The Service Credit will be a percentage of the ratable monthly license fee based on the current annual license fee.
Below | But at Least | Credit Percentage |
99% | 98% | 1% |
98% | 97% | 2% |
97% | 96% | 5% |
96% | 0% | 10% |
4. Services Credit Request and Payment Procedures
To receive a Service Credit, Customer must submit a request by sending an e-mail message to [email protected]. The credit request must (i) include Customer’s account name in the subject of the e-mail message; (ii) include, in the body of the e-mail, the dates and times of each incident of Service Unavailable that Customer claims to have experienced; (iii) include Customer’s server request logs that document the errors and corroborate Customer’s claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (iv) be received by Cresta within thirty (30) business days of the last reported incident in the SLA claim. If the Monthly Uptime Percentage of such request is confirmed by Cresta to be less than 99%, then Cresta will issue the Service Credit to Customer within one billing cycle following the month in which the request occurred. Customer’s failure to provide the information required above will disqualify Customer from receiving a Service Credit.
5. SLA Exclusions
The Service Commitment does not apply to any suspension or termination of Services or any other Services performance issues: (i) caused by factors outside of Cresta’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the Services; (ii) that result from any actions or inactions of Customer or any third party; (iv) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Cresta’s direct control); (v) that result from failures of individual instances not attributable to Services Unavailability; or (vi) arising from Cresta’s suspension and termination of Customer’s right to use the Services (collectively, the “SLA Exclusions”). If availability is affected by factors other than those explicitly listed in this agreement, Cresta may issue a Service Credit considering such factors in Cresta’s sole discretion.