1.1. Other than in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises regarding:
1.1.1. the interpretation of;
1.1.2. the carrying into effect of;
1.1.3. either of the Parties' rights and obligations arising from;
1.1.4. the termination or purported termination of or arising from thetermination of; or
1.1.5. the rectification or proposed rectification of,
this Agreement, or out of or pursuant to this Agreement (other than where an interdict is sought, or urgent relief may be obtained from a court of competent jurisdiction) shall be submitted to and decided by arbitration.
1.2. A dispute exists once a Party notifies the other Party of such dispute, in writing, and requires its resolution in terms of this clause 1. Any other point or dispute not included in the aforesaid notice shall not be precluded from forming a part of the dispute in the arbitration proceedings.
1.3. The Parties must agree to an arbitrator and refer the matter to arbitration in terms of this clause 1 within 10 (ten) Business Days following the date of the notice contemplated in clause 1.2.
1.4. The arbitration shall be held:
1.4.1. with only the Parties and their representatives present;
1.4.2. in Dover, Delaware.
1.5. The arbitration shall be subject to the arbitration legislation for the time being in force in Delaware, United States of America, and shall be run in accordance with the Delaware Rapid Arbitration Act. The Parties may agree, inwriting, to have another set of rules apply to the arbitration if they so choose.
1.6. The arbitrator shall be an impartial admitted attorney, advocate, orretired judge, whether practising or non-practising, of not less than 10 (ten)years standing appointed jointly by the Parties.
1.7. Failing agreement on the appointment of an arbitrator by the Parties within 10 (ten) Business Days, as contemplated in clause 1.3, either Party shall be entitled to request that the appointed secretariat nominates an arbitrator to arbitrate the dispute. Either Party must then appoint such nominee of the appointed secretariat as the arbitrator of the dispute.
1.8. If the secretariat fails or refuses to make the nomination within20 (twenty) Business Days of having been requested to do so, either Party may approach the Court of Chancery to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
1.9. Once the arbitrator has been appointed, proceedings may immediately becommenced by either Party, subject to the requirements in terms of applicablelaw and/or the arbitration rules.
1.10. The Parties shall keep the evidence in the arbitration proceedings andany order made by any arbitrator confidential.
1.11. The arbitrator shall be obliged to give his/her award in writing fullysupported by reasons.
1.12. The arbitrator shall have the power to give default judgment if eitherParty fails to make submissions on the due date and/orfails to appear at the arbitration.
1.13. The arbitrator's award shall, in the absence of manifest error, be finaland binding on the Parties and incapable of appeal. Either Party to thearbitration will be entitled to have the award made an order of court ofcompetent jurisdiction.
1.14. The Parties, together with the arbitrator, will agree on the arbitrator's remuneration, from time to time. The costs of any venue, arbitrator's remuneration, recording, transcription and other costs and expenses ancillary to the hearing shall be borne by the Parties in equal shares and shall be recoverable, as costs in the cause under the provisions of any award.
The provisions of this clause 1 are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
This Synatic Service Level Agreement (“Service Level Agreement”) outlines the service level performance targets applicableto the Synatic Service. Any capitalizedterms not otherwise defined in this Synatic Order Form have the meanings setforth in the Synatic EULA found here: Synatic EULA.
Company will use commercially reasonable efforts to maximize the availability of Synatic Service, and provide performance standards as detailed below. This SLA applies only to the Synatic Service, and does not apply to any other product offered by Synatic. Synatic will provide at least 90 days' advance notice for changes to this SLA inwriting.
Company will use commercially reasonable efforts to make the Synatic Service available with a Monthly Uptime Percentage of at least 99.8% (the “Availability Service Level”). As Customer’s sole and exclusive remedy for any failure to meet the Availability Service Level, (a) Company will endeavor to restore availability as soon as commercially practicable, and (b) Customer will be eligible to receive a credit calculated by multiplying the fees actually received by Company for the month during which the Company failed to meet the Availability Service Level by the applicable percentage set forth in the below chart. Credits will be provided to Company in the following month. As it relates to the Synatic Service, “available” means that the Synatic Service is available and operable for access and use by Customer in material conformity with applicable Documentation.
“Downtime” means that the Synatic Service is offline and unavailable for Customer’s use. Downtime excludes downtime and unavailability resulting directly or indirectly from any Service Level Exclusion.
“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes in the calendar month. The applicable formula is:
“Service Level Exclusions” means unavailability, suspension or termination of the Synatic Service that arises or results from: (a) termination or suspension of the Synatic Service described in Section 11.4 of the EULA; (b) factors outside of Company’s reasonable control, including without limitation, third-party applications, third-party services, force majeure events, regulatory actions or court orders, or Internet-relatedproblems beyond the demarcation point of Company and its third-party hosting providers; (c) any actions or inactions of Customer or any third party, including without limitation resulting from Customer Content, third party service providers, or programming errors including, but not limited to, Customer Content installation and integration, system administration, commands, file transfers performed by Customer or its representatives or third party service providers, work performed at Customer’s request (such as technical assistance); (d) Customer or its contractor’s infrastructure, equipment, software or other technology; (e) Customer’s use of the Synatic Service in a manner inconsistent with the Documentation; (f) any scheduled Downtime or emergency maintenance of the Synatic Service; (g) lack of availability or untimely response time from Customer to respond to incidents that require its participation for source identification and/or resolution, including meeting Customer’s responsibilities for any prerequisite services; or (h) Customer’s breach of obligations or restrictions under the Agreement or breach of license restrictions or other limitations as set forth in each Order Form.
For any partial calendar month during which Customer has access to the Synatic Service, the Monthly Uptime Percentage shall be calculated based on the entire calendar month, not just the portion for which the Customer has access to the Synatic Service. The determination of whether the Synatic Service is available will be made in good faith by Company based on monitoring performed by Company.
To receive a service credit under this SLA:
· Customer must log a support ticket with Company within 24 hours of first becoming aware of an event that impacts Synatic Service availability.
· Customer must submit Customer’s claim and all required information by the end of the month immediately following the month in which the Downtime occurred.
· Customer must include all information necessary for Company to validate Customer’s claim, including: (i) a detailed description of the events resulting in Downtime, including Customer’s request logs that document the errors and corroborate Customer’s claimed unavailability (with any confidential or sensitive information in the logs removed or replaced with asterisks); (ii) information regarding the time and duration of the Downtime;(iii) the number and location(s) of affected users (if applicable); and (iv)descriptions of Customer’s attempts to resolve the Downtime at the time of occurrence.
· Customer must reasonably assist Synatic in investigating the cause of the Downtime and processing Customer’s claim.
Synatic will process service credit claims within 45 days of receipt. If Synatic determine that Customer have satisfied the customer obligations above and that none of the below limitations apply to Customer’s claim, Synatic will grant Customer a service credit for the following month.
Synatic willapply any service credit to a future invoice or payment for the Synaticintegration platform account that experienced the Downtime. Service creditswill not be applied to fees for any other Synatic products or services.
Service creditsare Customer’s sole and exclusive remedy under this SLA.
