Mashgin Service Level Agreement

1. AVAILABILITY.

The Services will be available to Customer a minimum of ninety-nine percent (99%) of the time within any thirty (30) day period. “Availability” for any site, means the ability to successfully transmit data to, and receive data from, the Services for such site. “Unavailability” for a site, means the number of minutes that the Services were not Available to Customer at such site, but does not include Unavailability: (a) to the extent that Customer does not promptly notify Mashgin of such Unavailability and Mashgin also fails to identify such Unavailability through its commercially reasonable efforts using standardized system monitoring technologies and processes; (b) resulting from (i) scheduled maintenance by Mashgin where notice of such maintenance is posted to the Services; (ii) reasons of force majeure; or (iii) Customer’s misuse of the Services. Unless otherwise noted by Mashgin, scheduled maintenance shall occur outside of Customer’s normal business hours.
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2. NOTIFICATION.

Mashgin will use commercially reasonable efforts to inform Customer, via telephone, e-mail, or other immediately available mechanism selected by Customer, within fifteen (15) minutes of discovering any Unavailability. Mashgin will also provide subsequent notice to the Customer when such Unavailability has been resolved, including the cumulative time of Unavailability.
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3. PERFORMANCE REMEDIES.

As Customer’s sole and exclusive remedy for any Unavailability:

1. If, at any site, Mashgin fails to meet the Availability criteria within any month, Mashgin shall credit Customer’s invoice or, in the case of prepayment, refund to Customer, one-thirtieth (1/30) of Customer’s monthly service fees applicable to such site for each cumulative hour, or portion thereof, of Unavailability at such site in that month, up to a maximum of fifteen percent (15%) of the total monthly service fees for such site for that month.
2. If Mashgin fails to maintain the minimum performance standards in the Availability paragraph above for (i) two (2) consecutive months at fifty percent (50%) or more of all sites; or (ii) any three (3) month period in any rolling twelve (12) month period at fifty percent (50%) of all sites, Customer shall have the right, at its sole option, to a) institute a remediation plan that will be scoped & agreed by Mashgin and Customer within 60 days of this agreement and, optionally b) terminate the Agreement (in whole or in part) upon written notice to Mashgin. If Customer elects to terminate the Agreement (in whole or in part) due to Mashgin’s performance, Mashgin shall refund all prepaid and unearned monthly service fees based on the remaining months of the term of the Agreement.
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4. SUPPORT.

Mashgin shall provide Customer with telephone and email support for the Services to Customer during Customer’s normal business hours (“Services Support”). Services Support shall only include assistance with issues which are exclusively due to an error with the Services (i.e., a failure of the Services to conform to the written specifications provided by Mashgin).

Resolution of any errors caused by improper use or maintenance of the Equipment or Services by Customer or Customer’s clients will be supported by Mashgin but will not be considered toward Unavailability or count toward Service Level Requirements or Credits.
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5. ERROR RESPONSE TIMES.

An “Error” means an error in the Services which significantly degrades the Services as compared to Mashgin’s published performance specifications. For each Error reported by Customer, Mashgin shall (i) assign a priority level to such Error in its discretion in accordance with the table below, and (ii) respond to Customer and provide status updates in accordance with the time periods set forth in the table below.

  6. SERVICES CREDITS.

If Mashgin fails to respond to a Customer Error report within the allotted time frame, then, as Customer’s sole and exclusive remedy (and Mashgin’s sole liability) for each such response failure, Mashgin will credit Customer with one (1) day of free access to the Services and, at Customer’s request, institute a remediation plan that will be scoped & agreed by Mashgin and Customer within 60 days of this Agreement. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of one (1) free month of access to the Services. Further, Mashgin will not grant a credit for any period in which Customer received any Services free of charge. In order to receive such Services credits, Customer must notify Mashgin in writing within seventy-two (72) hours from the time of response failure, and failure to provide such notice will forfeit the right to receive a credit.

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