Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY THE DISTRIBUTOR OR RESELLER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and the Customer otherwise agrees to reasonably cooperate with the Company to serve as a reference account upon request.
Company will identify a solution engineer that will be responsible for ensuring that the customer is able to successfully deploy Upbound Universal Crossplane (UXP) into their environment, and will assist in any additional configuration and setup that is required. They will also provide any guidance required to effectively utilize Crossplane Providers to provision cloud infrastructure, including installation of the Provider, authoring of manifests, and building of packages. In the event that a critical blocker is identified by the customer, the solution engineer will coordinate addressing the issue promptly and delivering a patched deployment artifact that mitigates the problem.
The Services shall be available 99.9%, measured monthly excluding scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 4 hours, Company will credit Customer 2% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify the Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
Upbound offers two types of support plans as a part of UpboundCare. Each support ticket you open with the Upbound team will be assigned a severity. The severity can be set by you when you are initially creating the ticket, and this severity directly impacts the response time from the UpboundCare team.
Let's review the definitions of each severity level:
|Severity 1||Any error reported by the customer in production where the majority of users for a particular part of the software are affected, the error has high visibility, there is no workaround, and it is affecting revenue.|
|Severity 2||Any error reported by the customer in production where the majority of users for a particular part of the software are affected, the error has high visibility, a workaround may be available; however, performance may be degraded or functions limited and it is affecting revenue.|
|Severity 3||Any error reported by the customer where the majority of users for a particular part of the software are affected, the error has low to medium visibility, a workaround is available; however, performance may be degraded or functions limited and it is NOT affecting revenue.|
|Severity 4||Any error reported by the customer where a single user is severely affected or completely inoperable or a small percentage of users are moderately affected or partially inoperable and the error has limited business impact.|
As noted, the severity of the support ticket directly impacts the response and update times to which the team commits. This is why it is important to accurately set the severity of an issue: so the team can treat it with the urgency that it deserves and make sure your problems are getting solved. In the chart below, "IRTT" means "Initial Response Time Target".
|# of Allowed Case Submitters||Unlimited||Unlimited|
|24/7 "Follow the Sun" Coverage||Sev 1||Sev 1-2|
|12/5 Coverage||Sev 2-4||Sev 3-4|
|IRTT - Sev 1||4 hours||1 hour|
|IRTT - Sev 2||4 business hours||2 hours|
|IRTT - Sev 3||8 business hours||4 business hours|
|IRTT - Sev 4||2 business days||1 business day|
|Support Account Management||N/A||Included|
|Private Slack Channel||N/A||Included|
|Advanced Support Services||N/A||Included|
|Reporting & Operational Reviews||N/A||Included|
|Proactive Oversight & Management||N/A||Included|