BY SUBSCRIBING TO, ACCESSING AND USING THE PRODUCT, SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS SET FORTH BELOW WITH RESPECT TO THE SERVICE LEVEL OBLIGATIONS FOR THE PRODUCT. SUBSCRIBER HAS THE OBLIGATION TO PERIODICALLY REVIEW THESE TERMS AND CONDITIONS, WHICH MAY BE CHANGED IN RPM’S DISCRETION AT ANY TIME. IF SUBSCRIBER OBJECTS TO ANY CHANGES TO THE SERVICE LEVEL OBLIFATIONS, ITS SOLE REMEDY IS SET FORTH IN THE TERMS AND CONDITIONS.
1. Definitions.
(a) “Available” or “Availability” means the ability to Use the Product in all material respects, measured as follows:
a = [(b – c)-d] x 100
b – c
where:
“a” = the actual percentage of Availability in a month;
“b” = the total number of hours in such month;
“c” = the total number of hours of Excused Downtime in such month; and
“d” = the total number of hours of Unplanned Outages in such month.
(b) “Emergency Maintenance” means activities undertaken by RPM for the purposes of protecting the security, integrity or operation of the Product.
(c) “Excused Downtime” means the total number of minutes during the subject month when the Product is not accessible to Subscriber as a result of (a) Regular Maintenance; (b) Emergency Maintenance; (c) Force Majeure Events; (d) a failure in Subscriber’s equipment, software or system; or (e) Internet connectivity.
(d) “Regular Maintenance” means activities undertaken by RPM for the purposes of maintaining or enhancing the Product.
(e) “Unplanned Outages” mean outages that are not planned and are caused by the failure of Third Party Software or hardware or third party service providers.
2. Maintenance.
(a) RPM will conduct Regular Maintenance on the Product. However, Subscriber acknowledges that RPM may be required, in its sole discretion, to take the Product offline for a period of time and to restart the Product. RPM will use commercially reasonable efforts to prevent and reduce downtime and to notify Subscribers of downtime by notices on the Website or through other reasonably available means.
(b) RPM may modify the Product from time to time in RPM’s sole discretion. Subscriber acknowledges that some modifications may require updated System Requirements.
3. Availability RPM shall use commercially reasonable efforts in the ordinary course of its business to make the Product Available 24 hours a day, seven days a week at least 99.5% of the time as measured on a quarterly basis (the “Availability Level”). The Availability Level is solely intended as a guideline and the failure to achieve the Availability Level will not constitute a breach of the Agreement.