Pursuant to the terms of the DataScience Master Services Agreement (“MSA”) DataScience and Customer agree to the following Service Level Agreement (“SLA”) effective as of the Effective Date set forth in the applicable Pricing Addendum.

This SLA is subject to all of the terms and conditions of the MSA and the applicable Pricing Addendum.  To the extent that there shall be any conflict as between the terms and provisions contained in the MSA and those contained herein, the terms and provisions set forth in the MSA shall control, unless explicitly stated otherwise in this Pricing Addendum.

WHEREAS, Customer has entered into a Master Services Agreement and Pricing Addendum with DataScience for the provision of Services and Deliverables thereunder; and

WHEREAS, Customer desires to engage DataScience for the purpose of providing certain of the foregoing Support Services set forth herein;

NOW, THEREFORE, in consideration of the mutual conditions and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions.

For purposes of this Schedule, the following terms have the meanings set forth below. All initial capitalized terms in this SLA that are not defined in this Section 1 shall have the respective meanings given to them in the MSA.

"Contact List" means a current list of DataScience contacts and telephone numbers set forth in the Pricing Addendum, as that exhibit may be amended by written agreement of the parties from time to time, to enable Customer to escalate its Support Requests, including: (a) the first person to contact; and (b) the persons in successively more qualified or experienced positions to provide the support sought. 

"Customer Cause" means any of the following causes of an Error, except, in each case, any such causes resulting from any action or inaction that is authorized by this Schedule or the MSA, specified in the then-current Specifications or Documentation, or otherwise authorized in writing by DataScience: (a) any negligent or improper use, misapplication, misuse or abuse of, or damage to, the Software, Customer Licensed Materials, or Services by Customer or its Representatives; (b) any maintenance, update, improvement or other modification to or alteration of the Software, Customer Licensed Materials or Services by Customer or its Representatives; (c) any use of the Software, Customer Licensed Materials or Services by Customer or its Representatives in a manner inconsistent with the then-current Specifications, Documentation  or, to the extent consistent with and not limiting of the Specifications, the Documentation; (d) any use by Customer or its Representatives of any Third-party Products that DataScience has not provided or caused to be provided to Customer; or (e) any use by Customer or its Representatives of a non-current version or release of the Software, Customer Licensed Materials or Services.

"Customer Site" means any of the Customer’s facilities.

"Customer Systems" means Customer's information technology infrastructure, including Customer's computers, software, databases, electronic systems (including database management systems) and networks.

"Error" means any reproducible failure of the Software, Customer Licensed Materials or Services to operate in all material respects in accordance with the Documentation and, to the extent consistent with and not limiting of the Documentation, including any problem, failure or error referred to in the Service Level Table.

"First Line Support" means the identification, diagnosis and correction of Errors by the provision of the following Support Services by help desk technicians sufficiently qualified and experienced to identify and Resolve Customer's Support Requests reporting these Errors: (a) telephone/e-mail/chat assistance; (b) Remote Services; and (c) access to technical information on the DataScience's website for proper use of the Software, Customer Licensed Materials or Services.

"MSA” shall have the meaning set forth in the Preamble.

"Remote Access Software" has the meaning set forth in Section 2.7.

"Remote Services" has the meaning set forth in Section 2.7.

"Resolve" and the correlative terms, "Resolved", "Resolving" and

"Resolution" each have the meaning set forth in Section 2.2.

"Second Line Support" means the identification, diagnosis and correction of Errors by the provision of on-site technical support at Customer's premises by a qualified individual on the Contact List.

"Service Levels" means the defined Error severity levels and corresponding required service level responses, response times, Resolutions and Resolution times referred to in the Service Level Table.

"Service Level Table" means the table set out in Section 2.2.

"Severity Level 1 Error" has the meaning set forth in the Service Level Table.

"Severity Level 2 Error" has the meaning set forth in the Service Level Table.

"Severity Level 3 Error" has the meaning set forth in the Service Level Table.

"Support Fees" has the meaning set forth in Section 3.1.

"Support Hours" means Monday – Friday, 8am-6pm PST, excluding public holidays.

"Support Period" means the Term, or any period of time as may be expressly set forth in the applicable Pricing Addendum and, if requested by Customer, any period during which Customer transfers the Support Services to an alternate service DataScience.

"Support Request" has the meaning set forth in Section 4.1.

"Support Services" means DataScience's support of the then-current version and release of the Software, Customer Licensed Materials or Services, including First Line Support and Second Line Support.

"Technical Contact" has the meaning set forth in Section 4.2.

"Third-party Products" means all third-party software (including all Open-source Components), computer hardware, network hardware, electrical, telephone, wiring and all related accessories, components, parts and devices.

2. Support Services.

DataScience shall perform all First Line Support, Second Line Support and other Support Services during the Support Hours throughout the Support Period in accordance with the terms and conditions of this Schedule and the MSA, including the Service Levels and other DataScience obligations set forth in this Section 2.

2.1      Support Service Responsibilities. DataScience shall:

(a)  respond to and Resolve all Support Requests in accordance with the Service Levels;

(b)  provide unlimited First Line Support to Customer during all Support Hours by means of the telephone number (310)-579-6200, e-mail address support@datascience.com or dedicated Slack channel;

(c)  provide Second Line Support to Customer in accordance with Section 2.3;

(d)  provide Customer with online access to technical support bulletins and other user support information and forums, to the full extent DataScience makes such resources available to its other customers; and

(e)  provide to Customer all such other services as may be necessary or useful to correct an Error or otherwise fulfill the Service Level requirements, including defect repair, programming corrections and remedial programming.

2.2       Service Levels. Response and Resolution times will be measured from the time DataScience receives a Support Request until the respective times DataScience has (a) responded to that Support Request, in the case of response time and (b) Resolved that Support Request, in the case of Resolution time. "Resolve", "Resolved", "Resolution" and correlative capitalized terms mean, with respect to any particular Support Request, that DataScience has corrected the Error that prompted that Support Request and that Customer has confirmed such correction and its acceptance of it in writing. DataScience shall respond to and Resolve all Support Requests within the following times based on Customer's designation of the severity of the associated Error, subject to the parties' written agreement to revise such designation after DataScience's investigation of the reported Error and consultation with Customer: 

Severity Level of Error: 1

Definition

Required Service Level Response and Response Time

Required Service Level Resolution Time

Business Critical Failures: An Error that prevents Authorized Users from reasonably continuing use of the Software, Customer Licensed Materials or Services;

Examples: login problems, data or code loss or corruption, system crashes, ect.

 

(a) materially affects the operations of the Customer's business or marketability of its service or product;

(b) prevents necessary work from being done; or

(c) disables or materially impairs (i) any major function of the Software, Customer Licensed Materials or Services or (ii) Customer's use of any major function of the Software, Customer Licensed Materials or Services.

Level 1 Response:

DataScience shall acknowledge receipt of a Support Request within sixty (60) minutes.

If outside of Support Hours, DataScience shall acknowledge receipt of a Support Request within sixty (60) minutes.

Level 2 Response:

DataScience shall work on the problem continuously and:

(a) restore the Software, Customer Licensed Materials or Services to a state that allows the Customer to continue to use all functions of the Software, Customer Licensed Materials or Services in all material respects within eight (8) hours after the Level 1 Response time has elapsed; and

(b) exercise best efforts to Resolve the Error until full restoration of function is provided.

DataScience shall Resolve the Support Request as soon as practicable and no later than (40) forty business hours after DataScience's receipt of the Support Request.

If the DataScience Resolves the Support Request by way of a work-around accepted in writing by Customer, the severity level assessment will be reduced to a Severity Level of Error 2.

Severity Level of Error: 2

Definition

Required Service Level Response and Response Time

Required Service Level Resolution Time

System Defect with Work-around:

(a) a Severity Level 1 Error for which Customer has received, within the Resolution time for Severity Level 1 Errors, a work-around that Customer has accepted in writing; or

(b) an Error, other than a Severity Level 1 Error, that prevents Authorized Users’ use of important features within the Software, Services or Customer Licensed Materials, without an acceptable workaround; these issues signficatntly affect users’ experience or workflow.

 

Examples: severely degraded performance, errors causing restarts or recovery, ect. 

Level 1 Response:

DataScience shall acknowledge receipt of a Support Request or, where applicable, Customer's written acceptance of a Severity Level 2 Error work-around, within two (2) hours.

If outside of Support Hours, DataScience shall acknowledge receipt of a Support Request within two business hours.

Level 2 Response:

DataScience shall, within (2) two Business Days after the Level 1 Response time has elapsed, provide:

(a) an emergency Software, Services or Customer Licensed Materials fix or work-around; or

(b) temporary Software, Services or Customer Licensed Materials release or update release,that allows the Customer to continue to use all functions of the Software, Services or Customer Licensed Materials in all material respects.

DataScience shall Resolve the Support Request as soon as practicable and no later than (10) ten Business Days after DataScience's receipt of the Support Request or, where applicable, Customer's written acceptance of a Severity Level 1 Error work-around.

 Severity Level of Error: 3

Definition

Required Service Level Response and Response Time

Required Service Level Resolution Time

Minor Error:

An isolated or minor Error in the Software, Services or Customer Licensed Materials that meets each of the following requirements:

(a) can or does impair or disable only certain non-essential Software, Services or Customer Licensed Materials features;

(b) does not materially affect Customer's use of the Software, Services or Customer Licensed Materials; and

(c) a reasonable workaround exists

Examples: error messages, minimal degraded performance, unexpected behavior that does not affect output or use, etc.

Level 1 Response:

DataScience shall acknowledge receipt of the Support Request within eight (8) hours.

If outside of Support Hours, DataScience shall acknowledge receipt of a Support Request within eight (8) business hours.

 

DataScience shall Resolve the Support Request as soon as practicable and no later than (15) fifteen Business Days after DataScience's receipt of the Support Request.

 

 

 

 

 

 

 Severity Level of Error: 4

Definition

Required Service Level Response and Response Time

Required Service Level Resolution Time

Standard Error:

A minor problem or user question that does not affect any functionality of the Software, Services or Customer Licensed Materials.

Level 1 Response:

DataScience shall acknowledge receipt of the Support Request within eight (8) hours.

If outside of Support Hours, DataScience shall acknowledge receipt of a Support Request within eight (8) business hours.

 

 

2.3      Escalation to Second Line Support. First Line Support for any Support Requests will be escalated to Second Line Support as follows:

(a)  DataScience shall immediately escalate any Severity Level 1 Error Support Request to provide Second Line Support if DataScience has not Resolved such Support Request within (8) eight hours after the Level 1 Response time has elapsed.

(b)  DataScience shall immediately escalate any Severity Level 2 Error Support Request to provide Second Line Support if DataScience has not Resolved such Support Request within (2) two Business Days after the Level 1 Response time has elapsed.

DataScience shall ensure that all Second Line Support is provided by personnel designated in the Contact List who have the appropriate qualifications, skills and experience to fully and efficiently Resolve the Customer's Support Request within the Resolution time specified for such Support Request in the Service Level Table.

2.4      Escalation to Parties' Managers. If DataScience does not respond to a Support Request within the relevant Service Level response time, Customer may escalate the Support Request to the parties' respective relationship managers.

2.5      Time Extensions. The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response or Resolution times.

2.6      DataScience Updates. DataScience shall give Customer regular electronic or other written reports and updates of:

(a)  the nature and status of its efforts to correct any Error, including a description of the Error and the estimated time of DataScience's response and Resolution;

(b)  its Service Level performance, including Service Level response and Resolution times; and

(c)  the Service Credits to which Customer has become entitled.

2.7      Remote Services. DataScience may provide services to Customer remotely, including by means of telephone or internet telephony, or over the internet through the use of Remote Access Software that DataScience installs on the Customer Systems ("Remote Services") to assist in analyzing and Resolving any Error reported by a Support Request during the Support Period. Customer shall give DataScience access to the Customer Systems to install and use remote access software necessary for DataScience to provide the Remote Services to Customer ("Remote Access Software"). The Remote Access Software contains technological measures designed to collect and transmit to DataScience certain diagnostic, technical, usage and related information, including information about the Customer Systems and any Third-Party Products relating to or derived from Customer's use of the Software, Services or Customer Licensed Materials. The parties acknowledge and agree that:

(a)  DataScience and its Representatives may collect, maintain, process and use (i) only such information as it reasonably believes is necessary to assist in analyzing and Resolving a Support Request; and (ii) use such information solely to provide the Support Services in accordance with the terms and conditions of this SLA and the MSA;

(b)  all or portions of the Remote Access Software may remain on the Customer Systems after a Report Request is Resolved solely for the purposes set forth in Section 2.7(a); and

(c)  nothing in this Section 2.7 shall derogate from, limit or excuse in any way DataScience's obligation to provide on-site Second Line Support in accordance with the terms and conditions of this Agreement.

DataScience shall at all times treat any information it collects, maintains, processes or uses under this Section 2.7 as Customer's Confidential Information and shall comply with all Customer security and encryption requirements notified to DataScience in writing. 

2.8      Time of the Essence. DataScience acknowledges and agrees that time is of the essence with respect to its performance under this Schedule and that DataScience's prompt and timely performance hereunder, including its performance of the Service Levels, is strictly required.

3. Fees.

3.1      Support Fees. In consideration of DataScience's performance of the Support Services in accordance with the terms and conditions of this Schedule and the MSA, Customer shall pay to DataScience the fees set forth in the Pricing Addendum (the "Support Fees"). Payment to DataScience of the Support Fees pursuant to this Section 3 will constitute payment in full for the performance of the Support Services and Customer will not be responsible for paying any other fees, costs, expenses or other charges for or in connection with the Support Services.

3.2      Fee Increases. DataScience may increase the Support Fees and fees for Services effective on any yearly anniversary of the Effective Date or the date the DataScience first performs the Support Services for Customer pursuant to this Schedule in the ordinary course of Customer's operations ("Support Commencement Date"), provided that DataScience shall give Customer at least ninety( 90) days' prior written notice of any such change.

4. Support Requests and Customer Obligations.

4.1      Support Requests. Customer may request Support Services by way of a Support Request. Customer shall classify its requests for Error corrections in accordance with the severity level numbers and definitions of the Service Level Table set forth in Section 2.2 (each a "Support Request"). Customer's Technical Contact shall notify DataScience of each Support Request by e-mail or/, telephone or Slack chat or such other means as the parties may agree to in writing. Customer shall include in each Support Request a description of the reported Error and the time Customer first observed the Error.

4.2      Technical Contact. Customer shall designate in Exhibit [D] the individual(s) who will act as a direct liaison with DataScience and be responsible for communicating with, and providing timely and accurate information and feedback to, DataScience in connection with the Support Services (each such individual, a "Technical Contact"). The Technical Contact(s) will be the sole liaison(s) between Customer and DataScience in sending Support Requests and communicating with DataScience in connection with any matters relating to the provision of the Support Services.

4.3      Customer Obligations. Customer shall, by and through its Technical Contact(s), provide the DataScience with:

(a)  prompt notice of any Errors; and

(b)  each of the following to the extent reasonably necessary to assist DataScience to reproduce operating conditions similar to those present when Customer detected the relevant Error and to respond to and Resolve the relevant Support Request:

          (i)  direct access at Customer's premises to the Customer Systems and the Customer's files, equipment and personnel;

          (ii)  output and other data, documents and information, each of which is deemed Customer's Confidential Information as defined in the MSA; and

          (iii)  remote access to the Customer Systems in accordance with Section 2.7, subject to DataScience's compliance with all of Customer's security and encryption requirements [notified to DataScience in writing]; and

          (iv)  such other reasonable cooperation and assistance as DataScience may request.

5. Communications.

In addition to the mechanisms for giving notice specified in the MSA, unless expressly specified otherwise in this SLA or the MSA, the parties may use e-mail for communications on any matter referred to herein.

6. GENERAL PROVISIONS

          6.1 GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of California, without reference to rules regarding conflicts of laws. Any dispute arising out of this Agreement shall be submitted to a state or federal court sitting in Los Angeles, California which shall have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the parties irrevocably submit.

          6.2 COMPLIANCE WITH LAWS. Each party shall comply with all applicable laws and regulations in the course of performing under this Agreement.

          6.3 SEVERABILITY. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement shall, nevertheless, continue in full force and effect without being impaired or invalidated in any way.

          6.4 HEADINGS. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.

          6.5 ASSIGNMENT AND SUBCONTRACTING. This Agreement and Customer’s rights, duties, and obligations hereunder are personal to Customer, and Customer may not assign its rights, delegate its duties, or subcontract its rights without the prior written consent of Customer. The parties’ rights and obligations shall bind and inure to the benefit of their respective successors and permitted assigns.

          6.6 INDEPENDENT CONTRACTORS. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.

          6.7 NOTICE. Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received when delivered by hand, sent by nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to the offices of the respective parties at the addresses set forth by the parties’ signatures.

          6.8 AMENDMENT; WAIVER. This Agreement may only be amended by a written instrument signed by each of the parties. A waiver of any right under any provision of this Agreement by either party hereunder shall be valid only if such waiver is in writing and signed by the party to be charged. No waiver of any right under any provision of this Agreement on any occasion shall be a waiver of any other right or under any other provision or on any other occasion. No extension of time for performance of any obligation or act shall be deemed an extension of the time for performance of any other obligation or act.

          6.9 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

          6.10 INJUNCTIVE RELIEF. Customer hereby waives any right to injunctive relief or rescission and agrees that its sole and exclusive remedy for any breach or alleged breach, termination or cancellation of this Agreement by Customer shall be an action for damages and termination of the Services hereunder.

          6.11  ENTIRE AGREEMENT. This Agreement, together with all related exhibits and schedules, including without limitation Exhibit A attached hereto, constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications with respect hereto, all of which are merged herein. Neither party is relying upon any warranties, representations, assurances, or inducements not expressly set forth herein.