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Elite Service Level Agreement

THE FOLLOWING SERVICE LEVEL AGREEMENT ("SLA") WILL ONLY APPLY TO THE EXTENT MERCHANT HAS EXECUTED A SEPARATE AGREEMENT WITH RECURLY THAT SPECIFICALLY REFERENCES THIS SLA.

1. System Availability Service Level

Recurly will provide 99.5% System Availability over one-month periods, excluding any System Maintenance, Payment Gateway Outages or Force Majeure Events (each as defined below) that result in the Service not being available to Merchant, as measured and monitored from Recurly's facilities (the "Service Level"). Recurly will use reasonable efforts to schedule System Maintenance outside of Recurly's normal business hours. "System Availability" will be calculated on a monthly basis using the following formula: (Actual Availability divided by Total Scheduled Availability) multiplied by 100%. For purposes of measuring System Availability, the Service will be deemed to be available if it is available to successfully process, execute end-to-end business functionality, and respond with valid authorization responses. System Availability is calculated as a percentage of total minutes in each calendar month. The following definitions will apply with respect to the calculation of System Availability:

  1. "Actual Availability" means Total Scheduled Availability minus Downtime, in minutes.
  2. "Downtime" means the time (in minutes) that users of the Service are not able to (i) access the Service, (ii) perform ordinary functions to use or receive the Service in accordance with specifications, or (iii) utilize the Service for normal business operations due to failure malfunction or delay. Downtime does not include any unavailability due to System Maintenance, Payment Gateway Outages or a failure or defect arising out of a Force Majeure Event.
  3. "End-to-End Business Functionality" means the ability to process all steps of execution necessary for accomplishing the business process to which such steps apply.
  4. "Force Majeure Event" means any failure or delay caused by or the result of causes beyond the reasonable control of a party and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, outages of third party connections or utilities, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Recurly's possession or reasonable control and denial of service attacks), terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof or any civil or military authority, national emergency, insurrection, riot or war or other similar occurrence.
  5. "Payment Gateway Outages" means periods during which failures and outages of Merchant's payment gateway service provider prevents end users from completing a transaction via the Service while the Service is otherwise available in accordance with the terms and conditions of this Agreement.
  6. "System Maintenance" means time (in minutes) that the Service is not accessible to Merchant due to maintenance of the Service, including for maintenance and upgrading of the software and hardware used by Recurly to provide the Service. System Maintenance includes scheduled maintenance and unscheduled, emergency maintenance. System Maintenance in any given month will not exceed thirty (30) minutes per month. Any time during which the Service is unavailable to Merchant due to maintenance or other activity by Recurly for which Recurly fails to give notice, which exceeds the permitted time allotment, will be included in the calculation of Downtime.
  7. "Total Scheduled Availability" means 7 days per week, 24 hours per day, excluding System Maintenance, in minutes.

2. System Availability Notice

During the term of this Agreement, Recurly will provide Merchant with access to Recurly's then-current standard status monitoring site (which will include information regarding Recurly's performance with respect to the Service Level) (the "Service Status Site"). Merchant acknowledges and agrees that Merchant must sign up through the Service Status Site to receive service notifications and that Merchant may not receive service notifications if it fails to do so. Notwithstanding anything else, to the extent that Recurly is required to provide any notices or reports pursuant to this Service Level Agreement, Merchant acknowledges and agrees that the information normally posted by Recurly to the Service Status Site (and Merchant's access thereto) shall fully satisfy all of Recurly's obligations to provide such notices and reports. Recurly will provide notice to Merchant upon learning that System Availability does not satisfy the Service Level set forth above. Recurly will also provide notice to Merchant upon learning that the Service is unavailable for any reason. Following delivery of any such notice, Recurly will provide an additional notice to Merchant when the Service is again available.

3. Remedies for Failure to Satisfy Service Level

  1. If Recurly fails to meet the Service Level, as Merchant's sole remedy (and Merchant's sole liability therefor), then, for each full hour in a month that the Service is unavailable beyond the System Availability metric, Recurly will credit Merchant with an account credit equal to 10% of the total Fees otherwise payable by Merchant for the relevant month (before taking into account any account credit issued pursuant to this section) (an "SLA Credit"), the aggregate amount of which will not exceed 100% of the Fees payable by Merchant for that month. Such credits may not be redeemed for cash. If permitted by the Agreement, Recurly's blocking of data communications in accordance with the Agreement shall not be deemed to be a failure of Recurly to provide adequate service levels under this Agreement. "Downtime" means the time (in minutes) that users of the Service are not able to (a) access the Service, (b) perform ordinary functions to use or receive the Service in accordance with specifications, or (c) utilize the Service for normal business operations due to failure malfunction or delay. Downtime does not include any unavailability due to System Maintenance, Payment Gateway Outages, or a failure or defect arising out of a Force Majeure Event.
  2. "SLA Credit Procedures." In order to receive SLA Credits, Merchant must notify Recurly in writing (email is sufficient) within five (5) business days from the time of Downtime, and failure to provide such notice will forfeit the right to receive downtime credit with respect to such Downtime.

4. Merchant's Compliance

If Recurly reasonably believes that Merchant's implementation of the Service is not in compliance with Recurly's written documentation, then Recurly may audit Merchant's implementation of the Service. Merchant will provide reasonable access to Merchant's systems and applicable engineering staff and will otherwise reasonably cooperate with Recurly in completing this audit.