SERVICE LEVEL AGREEMENT

This Service Level Agreement (this “SLA“) describes Infrascale’s Service availability commitment and is subject to the Customer Agreement. The “Customer Agreement” means (a) the Partner Agreement, Distribution Agreement, Infrascale Customer Agreement or other agreement between You and us which allows Your use of Infrascale Services, or if no such agreement exists, the agreement set forth at www.infrascale.com/legal/customer-agreement/, to which You hereby expressly agree, and (b) any other agreement with us governing Your use of the Services. Capitalized terms not defined in this SLA will have the meanings specified in the Customer Agreement. In the event of a conflict between the terms of this SLA and the Customer Agreement, the terms of this SLA shall govern, but only to the extent of such conflict. Infrascale reserves the right to modify the terms of this SLA in accordance with the Terms of Service.

1. SERVICE AVAILABILITY COMMITMENT

1.1. Monthly Availability Commitment. Subject to Your compliance with the terms of this SLA and the Customer Agreement, Infrascale, Inc. (“Infrascale”) will use commercially reasonable efforts to ensure that the “Availability” of each class of Infrascale Service purchased by an Infrascale Partner, Distributor, or Direct Customer (“You”, “Your” or “Customer”) is greater than or equal to the “Monthly Availability Commitment” for such Infrascale Service, as set forth in the table below. If the Customer Agreement authorizes the resale or supply of Infrascale Service(s) under an Infrascale partner or distributor program, then all references to “You”, “Your” or “Customer” in this SLA shall mean Partner or Distributor, as applicable.

1.2. Availability.  Availability in a given calendar month is calculated according to the following formula:

Availability = ((total minutes in a calendar month – total minutes Unavailable (as defined below)) / total minutes in a calendar month) x 100

If the Availability of the Infrascale Service does not satisfy the Monthly Availability Commitment set forth above, and provided You satisfy Your obligations under this SLA, then You will be eligible to receive a Service Credit as described below for the affected class of Infrascale Service. Notwithstanding anything contained herein or in the Customer Agreement to the contrary, Your sole and exclusive remedy for any failure by Infrascale to satisfy the Monthly Availability Commitment (and then only to the extent this SLA is actually applicable) is to receive a Service Credit for the affected class of Infrascale Service.

1.3. Unavailable. A class of Infrascale Service will be considered “Unavailable,” subject to the Availability Exclusions and Limitations (as set forth below), if Infrascale’s monitoring tools determine that a ”Service-Specific Unavailability” (as defined below) has occurred. The total minutes that a class of Infrascale Service is Unavailable for a particular Service-Specific Unavailability is measured from the time that Infrascale validates the Service-Specific Unavailability has occurred until the time that Infrascale resolves the Service-Specific Unavailability such that the Infrascale Service has resumed and is Available to You. If two or more Service-Specific Unavailability events occur simultaneously for a particular class of Infrascale Service, the Service-Specific Unavailability with the longest duration will be used to determine the total minutes Unavailable.

2. SERVICE-SPECIFIC UNAVAILABILITY; SUPPORT TICKET

2.1. Service-Specific Unavailability.  “Service-Specific Unavailability” means with respect to each class of Infrascale Service:

2.1.1. Centralized Control Interfaces (all products): partial or full loss of use of the Dashboard/Web Interface/API functionalities due to problems inherent to the particular Infrascale Service.

2.1.2. Infrascale Cloud Backup (ICB) and SOS Online Backup:

• • • the inability to backup selected data more than twenty-four (24) hours after the Infrascale Support team’s receipt of Your Support Ticket regarding the issue (as described in Section 2.2. below); or
    • the inability to access the backed-up data in the Infrascale cloud more than twenty-four (24) hours after the Infrascale Support team’s receipt of Your Support Ticket regarding the issue.

2.1.3. Infrascale Cloud Application Backup (ICAB): the inability to access the backed-up data (mailboxes, storage) in the Infrascale cloud more than twenty-four (24) hours after the Infrascale Support team’s receipt of Your Support Ticket regarding the issue.

2.1.4. Infrascale Disaster Recovery (IDR) and Infrascale Backup & Disaster Recovery (IBDR):

• • • Infrascale-hosted Hardware Failure: the inability to access an Infrascale-hosted appliance due to a breakdown or a malfunction of the hardware. Devaluation of the performance, without loss of access to an Infrascale-hosted appliance or otherwise does not result in the inability to recover data or workloads, shall not constitute Unavailability.
    • Network and Connectivity: the inability to access an Infrascale-hosted appliance and/or the associated storage due to a breakdown or a malfunction of Infrascale network equipment or connectivity. Breakdowns and/or malfunctions of the network equipment or connectivity which do not impact the ability to access the Infrascale-hosted appliance to backup or recover do not constitute Unavailability, including if a devaluation of performance of the infrastructure (especially the response time) is observed.
    • Recovery Point Objective (RPO) Failure: the inability to maintain the administrator-configured RPO (maximum acceptable amount of data loss between backups, measured in time) in an Infrascale-hosted appliance, where the RPO was previously operational for a sustained period immediately prior to the alleged Unavailability, the RPO is greater than ten (10) consecutive minutes, and such information is demonstrable by logs.
    • Recovery of Data Files: the inability to restore data from the Infrascale cloud more than twenty-four (24) hours after the Infrascale Support team’s receipt of Your Support Ticket regarding the issue. If Infrascale is unable to restore the data, You are eligible to receive Service Credits as set forth in Section 4. For the avoidance of doubt, You shall not be eligible to receive additional Service Credits in succeeding months for any continued inability to restore such data.
    • Failover to Disaster Recovery Image: the inability to boot a DR image in the Infrascale cloud more than two (2) hours (in the event of a declaration of an actual disaster recovery event) or twenty-four (24) hours (for DR testing scenarios) after the Infrascale Support team’s receipt of Your Support Ticket regarding the issue, provided such inability to boot is due directly to Infrascale’s acts or omissions. In the event of such Unavailability, You are eligible to receive a maximum of one (1) day Service Credit for each day You are unable to recover (or test), subject to the terms of Section 4.

2.2. Support Ticket.  You must promptly notify Infrascale Support of any instance of Service-Specific Unavailability, thereby creating a Support Ticket, by either of the following methods:

• Emailing support@infrascale.com, or
• Contacting Infrascale Support by telephone at +1-877-896-3616 or +1-310-363-7269

Failure to promptly notify Infrascale Support in accordance with the above will create a delay in the resolution of the issue and may result in rejection of a request for Service Credit. Please note that notice or other communications to Infrascale sales or executives will not result in a Support Ticket, thus formal notification will not occur until You have submitted it directly to Infrascale Support.

3. AVAILABILITY EXCLUSIONS AND LIMITATIONS

Downtime due in whole or in part to any of the following will be excluded from any time-based calculations related to a class of Infrascale Service being Unavailable:

• • recurring scheduled maintenance or low/non-impactful maintenance by Infrascale or its service providers where the interruption to any Infrascale Service is expected to result in no longer than fifteen (15) minutes of Unavailability and such maintenance is performed during the following times:
    • Tuesday 12am – 3am Data Center Local Time
    • Thursday 12am – 3am Data Center Local Time
    • Sunday 12am – 3am Data Center Local Time
  • additional or longer scheduled maintenance and/or upgrades which require Infrascale or its service providers to perform maintenance or other services on technology environments, computing systems or information technology networks where Infrascale has provided notice at least twenty-four (24) hours in advance;
  • any period of suspension as described in the Customer Agreement or any billing deferral period agreed to by Infrascale and communicated to You;
  • Your misuse of the Infrascale Service, including any use inconsistent with or in violation of the terms of the Customer Agreement;
  • force majeure events, denial of service attacks, virus or hacking attacks for which there is no commercially reasonable, known solution, or any other events that are not within Infrascale’s reasonable control or that could not have been avoided with commercially reasonable care;
  • packet loss, network or Internet problems beyond Infrascale’s border router supporting public internet connectivity of Infrascale;
  • bugs in third party software or hardware that comprise part of an Infrascale Service or Product for which there is no commercially known fix;
  • any act or omission by You or any third party;
  • Your or any third party’s equipment, software, services or other technology  (other than third party equipment within the direct control of Infrascale);
  • Your failure to implement configuration or security settings communicated by Infrascale;
  • events to the extent arising from or related to Your use of EOL Hardware, Legacy Hardware, or an outdated release (not the current version nor current minus one) of the Infrascale Service software, or any failure to promptly install a material Update;
  • factors that are outside the reasonable control of Infrascale, including downtime associated with Customer-generated events or Customer-hosted IDR/IBDR appliance(s), or due to third party causes; or
  • with respect to IDR and IBDR only, Your use of the appliance in excess of its reasonable resource capacity, including without limitation the quantity/volume of virtual machines (“VMs”) configured on the appliance and/or utilization of the resources on the appliance (e.g., RAM, CPU, storage) such that there aren’t sufficiently available resources to boot one or more VM(s).

4. SERVICE CREDIT

If the Availability of the Infrascale Service does not satisfy the Monthly Availability Commitment set forth above, and provided You are not in breach of the Customer Agreement (inclusive of non-payment) and have satisfied the terms of this SLA, You shall be eligible to receive a Service Credit for each calendar day during which such Infrascale Service fails to satisfy the Monthly Availability Commitment.

A “Service Credit” means a credit equivalent to the per diem amount paid or payable to Infrascale under the Customer Agreement for the applicable Infrascale Service for a calendar month.

Service Credits shall not entitle You to any refund or other payment from Infrascale, and in no event shall the aggregate amount of Service Credits You receive for any calendar month exceed the total amount of fees paid or payable to Infrascale for the applicable Infrascale Service for such month. Notwithstanding anything contained herein or in the Customer Agreement to the contrary, Your sole and exclusive remedy for any failure by Infrascale to satisfy the Monthly Availability Commitment (and then only to the extent this SLA is actually applicable) is to receive a Service Credit for the affected class of Infrascale Service.

Service Credits will be issued only to the person or entity that Infrascale invoices for the applicable Infrascale Service, and will be made in the form of a monetary credit applied towards a future invoice for the same Infrascale Service for the duration and per diem amounts specified above. If Your service term for the Infrascale Service expires or is terminated prior to the issuance or use of a Service Credit, the Service Credit will become void as of the date of the expiration or termination of such service term.

You will not be eligible to receive a Service Credit if:

• • You are delinquent in any payments due Infrascale at the time of the Service Specific Unavailability or when requesting a Service Credit;
  • You are in violation of any term of the Customer Agreement or this SLA at any time during the Service Specific Unavailability; or
  • the Service Specific Unavailability was due to Your failure to meet Your security responsibilities as set forth in the Customer Agreement.

To receive a Service Credit, You must submit a request in writing with sufficient information regarding the Unavailability to support@infrascale.com within ten (10) calendar days of the alleged incident. Failure to comply with the foregoing will forfeit Your right to receive any Service Credit.

Upon receipt of a Service Credit request, Infrascale will seek to validate the existence of the Service Specific Unavailability by utilizing Infrascale’s monitoring tools, data and records, which shall be the sole source of information used to track and validate Availability. Upon request, Infrascale will provide to You, within forty-five (45) days after Infrascale has confirmed the existence of the Service Specific Unavailability (but no more than once per calendar year), a copy of the records related to the confirmed Service Specific Unavailability which were used to assess the Service Credit request.

Revision Date
Last revised June 5, 2023.
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