Service Level Agreement

Last updated: 1 March 2015

BEFORE USING KAPTA’S ONLINE SERVICE (AS DEFINED BELOW), PLEASE READ THIS KAPTA SERVICE LEVEL AGREEMENT (SLA) AND PROFESSIONAL SERVICES TERMS.

Appendix A
KAPTA SERVICE LEVEL AGREEMENT (SLA)

1. Help Desk

“Support Incident” means (i) a basic question related to the use or configuration of the Online Service where the use or configuration is consistent with guidance in the documentation, (ii) a reproducible non-conformity in the Online Service causing the Online Service not to operate in substantial conformance with the applicable then-current documentation.  Support Incidents do not include issues or support related to or arising from third party systems, products, software, or services, or Customer’s network, hardware, content, or systems.

If Customer has paid Kapta all applicable fees due, Kapta will provide technical assistance and basic troubleshooting for Support Incidents to Customer’s Administrator(s) during Business Hours (defined in chart below) in the English language. To receive support, Customer must email support [at] kapta [dot] com as listed on the Kapta website Support page.
Kapta will use best efforts to respond to Customer support requests in accordance with the following target response times:

High Priority: Online Service is not accessible or operational for all Users. Online Service is accessible but a material system component is not available to all Users.

Medium Priority: Online Service is accessible; however, individual transactions are not functioning in accordance with the Documentation for all Users.

Low Priority: Requests for systems maintenance or administration tasks.

2. Online Service Availability

Kapta will use best efforts to ensure that the Kapta Online Service will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below.

Non-compliance with Online Service Availability 
Please reference the following table (Reporting Period = calendar month) which details the credit available to Customer in the event the Online Service availability falls below the indicated service levels:

Additionally, if the Online Service availability falls below 95% for three (3) consecutive Reporting Periods, Customer shall have the right to terminate these Terms by delivering Kapta written notice within ten (10) days of the end of such three (3) month period or Customer shall be deemed to have waived its termination right with respect to that particular three (3) month period.

Calculation of Online Service Availability
Online Service Availability = (Total Hours in Reporting Period – Unplanned Downtime –Scheduled Maintenance – Excluded Downtime) / (Total Hours in Reporting Period – Scheduled Maintenance – Excluded Downtime* X 100%.

“Scheduled Maintenance” means any period of time during which the Online Service is unavailable due to Kapta’s planned maintenance and support of the Online Service for which Kapta gives Customer at least 24 hours prior notice.  Except for urgent circumstances (e.g., a system failure or security threat), Scheduled Maintenance may occur from 10:00PM Friday through 4:00 AM Monday, Mountain Time.

“Unplanned Downtime” means any time the Online Service is not available because of an event or circumstance other than Scheduled Maintenance or Excluded Downtime.

“Excluded Downtime” means the following: (i) unavailability caused by circumstances beyond Kapta’s reasonable control, including, without limitation, acts of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Kapta employees), or any other force majeure event or factors; (ii) any problems resulting from Customer combining or merging the Online Service with any hardware or software not supplied by Kapta or not identified by Kapta in writing as compatible with the Online Service; (iii) interruptions or delays in providing the service resulting from telecommunications or Internet service provider failures outside of Kapta’s datacenter as measured by Amazon Kapta Services (a third party website availability monitoring provider); (v) any interruption or unavailability resulting from Customer’s use of the Online Service in an unauthorized or unlawful manner or any interruption resulting from the misuse, improper use, alteration, or damage of the Online Service; (vi) any problems caused by modifications in any version of the Online Service not made or authorized by Kapta in writing; and (vii) any problems resulting from Customer’s or any third party’s acts, errors or omissions or any systems not provided by Kapta.

Request for Credit
Any Customer request for a credit that Customer is entitled to under this SLA may only be made on a calendar monthly basis and must be submitted in writing within ten (10) days after the end of the relevant calendar month or shall be deemed to have been waived by Customer.  For those periods at the end of a Subscription Term that do not coincide with the end of a calendar month, Customer must make a claim for a credit within ten (10) days after the expiration of the Subscription Term or the claim for credit shall be deemed to have been waived by Customer. The total of all credits applicable to or accruing in any given Reporting Period shall not exceed 15% of the pro-rated Subscription fees paid or payable to Kapta by Customer for the Reporting Period.

The right to a credit and/or the right to terminate these Terms described in this Appendix shall be Kapta’s sole obligation and the sole and exclusive remedy available to Customer in the event of unavailability of the Kapta Online Service or any failure to meet the service levels described in this Appendix, and, under no circumstance, shall the unavailability of the Online Service be deemed a default or breach under these Terms or this Service Level Agreement.

All credit requests will be verified against Kapta’s system records. Upon request, Kapta will make available to Customer a monthly record of the Online Service availability.

Appendix B

Professional Services Terms

Capitalized terms set forth in this Appendix but not defined in the Appendix have the meaning given elsewhere in these Terms.

1. Statements of Work.  All services to be performed under an Order Form shall be described in either an Order Form or a separate written, mutually agreed to statement of work signed by authorized representatives of both parties (each a “SOW”), each of which is expressly made subject to the terms and conditions of these Terms.  Customer agrees to retain Kapta to perform the consulting services described in each SOW (the “Services”), and Kapta agrees to perform the Services on the terms and subject to the conditions and assumptions set forth in these Terms.  Each SOW should contain descriptions of the Services and a description of any Deliverables to be provided by Kapta, Kapta’s compensation, and any additional terms and conditions the parties deem appropriate.  Customer and Kapta expressly acknowledge and agree that any schedules or timelines shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement.  Kapta agrees to use diligent efforts to meet schedules.  Customer acknowledges that Kapta limits the amount of time Kapta’s personnel spend on out of town travel, and such limits may impact the weekly schedules of a particular engagement.  All Services and Deliverables are deemed accepted by Customer upon completion or delivery and are warranted as described below.  Service hours purchased by Customer are payable as set forth above in these Terms and expire as set forth in the SOW, but in any case no longer than 180 days from the date of purchase.
2. Changes.  Each party may request changes that affect the scope or duration of the Services relating to any SOW.  Neither party shall be bound by any change requested by the other party, until such change has been memorialized in writing and signed (or otherwise agreed to in writing, including e-mail) by authorized representatives of each party (“Change Order”).  Each Change Order will be subject to the terms and conditions of these Terms.
3. Location and Access.  Kapta may perform the Services at Customer’s premises, Kapta’s premises or such other premises that Customer and Kapta may deem appropriate.  The SOW may describe the location where Kapta will perform Services.  Customer will permit Kapta to have reasonable and safe access to Customer’s premises, personnel and computer equipment for the purposes of performing the Services at Customer’s premises.
4. Customer Assistance.  Customer shall provide Kapta with such resources, information, cooperation, and assistance as Kapta may reasonably request in connection with the performance of the Services.  Without limiting the generality of the foregoing, in the event the Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, and other resources as reasonably requested by Kapta, whether requested during regular business hours or otherwise.  Customer acknowledges and agrees that Kapta’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested.  Kapta shall have no liability for deficiencies in the Services or deliverables, or failure to meet any Schedule, resulting from the acts or omissions of Customer, its agents or employees or performance of the Services in accordance with Customer’s instructions.
5. Customer Information.  Customer acknowledges and agrees that Kapta may, in performing its obligations pursuant to these Terms, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that Kapta shall be entitled to rely upon the accuracy and completeness of such information in performing the Services.  Kapta, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Customer and Kapta shall be entitled to rely on all such decisions of Customer.
6. Non-solicitation.  Both parties agree that during the term of these Terms and for a period of 12 months thereafter, neither party shall solicit, negotiate with or offer employment to (whether as an employee, officer, director, partner, consultant or otherwise), directly or indirectly, either party’s present or former personnel, with whom they have either had contact or been referred to during the term of these Terms, without first notifying an authorized designee of the other party of such intent in writing.  Due to the scarcity of human resources that possess the skills and experience necessary to perform services on behalf of Kapta, Customer acknowledges that Kapta’s damages and losses resulting from any breach of this Section f would be extremely difficult to fix in an actual and accurate amount.  Therefore, it is further agreed that if Customer breaches this Section f by hiring any Kapta personnel (whether as an employee, officer, director, partner, consultant or otherwise), Customer will pay a fee equal to one hundred percent (100%) of the projected one-year annualized compensation for the person or persons hired as liquidated damages.  This fee would be payable immediately upon acceptance of hire.
7. Ownership.  “Kapta Reserved Technology” means any ideas, concepts, know-how, knowledge, techniques, tools, approaches, methodologies, templates, operating instructions, standardized features, other technology, or any intellectual property rights created, developed, owned or licensed by Kapta (i) prior to the Effective Date of these Terms or (ii) during the term of these Terms but outside the scope of these Terms and any SOW or (iii) during the term of these Terms that are generally applicable and not Customer-specific.  Other than Kapta Reserved Technology, all work product that Kapta creates specifically for Customer under any SOW (the “Deliverables”), all patents, copyrights, trade secrets or other proprietary rights in or to the Deliverables are and will be the sole and exclusive property of Customer, and Kapta hereby assigns ownership of Deliverables to Customer.  Notwithstanding the foregoing, Kapta shall own all worldwide right, title and interest in and to the intellectual property rights embodied in the Kapta Reserved Technology, whether or not such Kapta Reserved Technology is incorporated into any Customer Deliverables.  Nothing in these Terms shall prevent Kapta from creating derivative works based on the Kapta Reserved Technology, developing, modifying, using, marketing, distributing or otherwise commercially exploiting the Kapta Reserved Technology in any manner. Kapta reserves all rights not expressly granted to Customer under these Terms.  Nothing contained herein shall be construed as limiting Kapta’s rights to commercially use or market in the conduct of Kapta’s business general ideas, concepts, know-how, knowledge, market analysis, frameworks, techniques, tools, approaches, and methodologies or other residual values possessed or known to Kapta or learned or developed during the course of providing the Services, without obligation of any kind to Customer.
8. Limited Warranty.  Kapta represents and warrants that Kapta will perform the Services in a good and workmanlike manner and in substantial accordance with the express terms of the SOW.  Customer must notify Kapta of any perceived defect in Services or Deliverables within 30 days of the completion or delivery of the particular task or Deliverable at issue.  As Kapta’s sole obligation and Customer’s sole and exclusive remedy for breach of this warranty, Kapta will re-perform any defective services at no additional cost to Customer.