Service Level Agreement

Gearhead Commerce will use commercially reasonable efforts to avoid and remedy situations in which Client's website is unresponsive or degraded. This Service Level Agreement (“SLA”) describes the remedies available to Customer in the event Gearhead Commerce Echo+ application, as reported by Gearhead Commerce Uptime Robot service (the “Service”) falls below the service levels provided herein

Service Availability. The Client acknowledges that Gearhead Commerce will schedule a daily system maintenance period, as defined below. Gearhead Commerce may occasionally have to interrupt services outside of this time period, including for purposes of upgrades and maintenance to the application and the data center. The Service Levels provided under this SLA do not include any problems caused by modifications by Customer not made or authorized by Gearhead Commerce. Notwithstanding anything contained herein to the contrary, the parties agree on the following definitions, terms and conditions:

“Permitted Downtime” means any time during a calendar month in which Customer is not able to access their website (a) a scheduled daily maintenance period that occurs between the hours of 12:00 am to 6:00 a.m. Eastern Time; (b) any maintenance outside the daily scheduled maintenance for which Gearhead Commerce shall endeavour to provide notice to Customer at least 24 hours in advance via; (c) an emergency maintenance period in which Gearhead Commerce is required to provide maintenance as a result of conditions beyond Gearhead Commerce’s control, including, without limitation, a Force Majeure Event (as hereinafter defined) or otherwise, which maintenance is required to be performed on an emergency basis to maintain Total Scheduled Availability; (d) software or hardware not provided, controlled or authorized by Gearhead Commerce; (e) Force Majeure Events; (f) negligent or wilful acts of Customer or its users; and (g) Customer’s failure to implement commercially reasonable changes in equipment or software recommended by Gearhead Commerce as essential to maintain service levels.

Downtime” means any time during a calendar month in which customer's website is unresponsive for any reason other than a Permitted Downtime.

“Force Majeure Events” means any event or condition that directly or indirectly prevents Gearhead Commerce from performing the Services hereunder, is beyond the reasonable control of Gearhead Commerce, and could not, by the exercise of due diligence, have been avoided in whole or in part by Gearhead Commerce, and shall include, subject to the foregoing and without limitation: any act of God, natural disaster, earthquake, war, riot, civil war, blockade, insurrection, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), service interruption by a telecommunications services provider, interruption by a domain registrar or DNS provider, or connectivity delays with internet providers outside of Gearhead Commerce reasonable control.

“Total Scheduled Availability” means 7 days a week, 24 hours a day in a calendar month, in minutes.

“Actual Uptime” means Total Scheduled Availability minus Downtime, in minutes.

“Actual Uptime Percentage” means the Actual Uptime divided by the Total Scheduled Availability multiplied by 100 (Actual Uptime/Total Scheduled Availability X 100).

2. Service Availability Credits. If during Customer’s Service Term, the Actual Uptime Percentage during any calendar month is lower than 99.99%, and Customer requests a credit in writing within ten (10) calendar days of the Downtime, Gearhead Commerce will give Customer a credit with respect to the Service fees paid by Customer for that month for the Services that were affected by the Downtime by a percentage equal to the applicable service credit percentage set forth below. Such credit will be applied to Customer’s next monthly invoice.

Actual Uptime Percentage Service Credit
Percentage 99.50% to 99.98% (inclusive) 5% credit
99.00% to 99.49% (inclusive) 10% credit
< 99.00% 15% credit

3. Termination for Repeated Downtime. Notwithstanding, if the Actual Uptime Percentage is less than 99.00% in any two (2) consecutive calendar months or three (3) times in any consecutive six (6) month calendar period (each a “Triggering Event”) Customer shall have thirty (30) days from the last day of the month in which the Triggering Event occurred to terminate the Services for cause by providing thirty (30) days written notice of termination to Gearhead Commerce. Upon receipt of a proper notice of termination, Gearhead Commerce shall provide, upon Customer’s request, with up to thirty (30) days of continued Services (“Transition Services”) during which time Customer shall coordinate the transition of the Services to a new provider. All fees and credits called for under the Terms of Service shall be in full force and effect during the Transition Services period. Except for Customer’s termination rights set forth above and those in the Terms of Service, any refunds or credits provided pursuant to this SLA will constitute Gearhead Commerce sole liability and Customer’s sole and exclusive remedy for any failure to achieve an Uptime Percentage of 99.99%. Actual Uptime Percentage shall be based on monitoring by Gearhead Commerce.