Reseller Application and License Agreement

Reseller Application and License Agreement

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This Reseller Application and License Agreement (“Agreement”) is between EME CLOUD, LLC., a Florida Limited Liability Company (“EmeCloud”), with its principal offices located at 1401 Manatee Ave. W., Bradenton, FL 34205 and the entity (“Reseller”) named at the end of this agreement on the signature lines provided. This Agreement is intended to be governed by the Florida Electronic Transactions Act. You manifest your assent to the terms in this document by any act demonstrating your intent to agree, including clicking any button containing the words “I agree” or similar syntax, below. You agree that electronic communication (including email) between EmeCloud and you, both now and in the future, is an acceptable and reasonable means of communication. It is suggested that you print this Agreement for your records. If you are unable to print this Agreement, please contact EmeCloud and we will supply you with a copy of this Agreement.

Recitals

A. EmeCloud is the designer and producer of a unique IT solution that is intended to provide a fully functional cloud IT environment through a combination of certain proprietary software and processes (collectively, “EmeCloud Solution”). B. Reseller desires to acquire a limited use license for the components comprising the EmeCloud Solution from EmeCloud, private label the solution if they so choose, and then resell the EmeCloud Solution to Reseller’s end user clients (“Clients”) under Reseller’s designated trade name. NOW THEREFORE, for the mutual promises and covenants described in this Agreement, EmeCloud and Reseller hereby agree as follows:

Terms & Conditions

1) Definitions.

a) “Entity” shall mean any natural person, corporation, general Resellership, limited Resellership, limited liability company or Resellership, proprietorship, other business organization, trust, union, association or governmental authority. b) “Reseller” means any entity that distributes, resells, or markets products developed and/or hosted by EmeCloud. c) “EmeCloud Solution” shall mean and include the combination of all hardware and software designated by EmeCloud as comprising the EmeCloud Solution which may be modified or updated by EmeCloud from time to time. d) “EmeCloud Trademarks” means all names, marks, logos, designs, trade address and other brand designation used by EmeCloud in connection with the EmeCloud Solution. e) “Agreement” shall mean, collectively, this Reseller Application and License Agreement, including all exhibits, schedules and documents referenced herein. f) “Confidential Information” shall have that definition ascribed to it in Section 10, below. g) “End-Client” shall mean any Entity for whom Reseller provides one or more elements of the EmeCloud Solution. h) “EmeCloud Control Panel” shall mean the EmeCloud Reseller website that allows users to add, remove or otherwise manipulate the elements of the EmeCloud Solution. i) “Private Label” shall mean that definition ascribed to it in Section 3(d), below. j) “Service Order” shall mean the form designated by EmeCloud to be used by Reseller to purchase products or services from EmeCloud and/or to license software from EmeCloud accessed in the EmeCloud Control Panel. The form may be amended from time to time by EmeCloud. k) “Service Level Agreement” (SLA) describes the various types of services and service levels that will be provided to Reseller by EmeCloud as indicated in Exhibit A.

2) Restrictions.

a) Non-Circumvention. During the term of this Agreement, except as expressly provided in this Agreement, EmeCloud shall not intentionally communicate with any End-Client about the EmeCloud Solution so long as EmeCloud is made aware of the identity of Reseller’s End-Clients. The parties agree that Reseller and/or Reseller’s designated agent shall be the primary point of contact with each End-Client. b) Non-Solicitation. EmeCloud agrees that during the term of this Agreement and for a period of twelve (12) months thereafter, EmeCloud shall refrain from soliciting Reseller’s End-Clients for the provision of the EmeCloud Solution. This prohibition shall not apply where EmeCloud terminates this Agreement For Cause (See Section 10). The parties acknowledge and agree that advertisements and solicitations of EmeCloud that are directed toward the public in general, or business discussions initiated by Reseller’s End-Clients, shall not be a breach of this section. c) Nondisclosure. EmeCloud further agrees not to disclose any information to any third party that identifies End-Client or End-Client’s use of the EmeCloud Solution without the express written consent of Reseller. Notwithstanding the forgoing, EmeCloud shall be permitted to collect and report information about the use of the EmeCloud Solution by Resellers and End-Clients for EmeCloud’s research purposes, provided however, that such information is collected and used in a de-identified manner. d) Opportunity Registration. If the Reseller registers his opportunities and complies with the requirements of the Registration Program, EmeCloud will protect the end-client opportunity.

3) Services. Branding.

a) License Grant. Subject to Reseller’s material compliance with the terms of this Agreement, EmeCloud hereby grants to Reseller a non-exclusive, non-assignable, worldwide right to use the EmeCloud Solution solely to provide services to End-Clients. Except to the extent expressly authorized or permitted in this Agreement or by applicable law without the possibility of contractual waiver, Reseller shall not: (i) copy, transfer or distribute the EmeCloud Solution, (ii) reverse assemble, reverse engineer, reverse compile, or otherwise translate any portion of the EmeCloud Solution, or (iii) sublicense or assign the license conveyed to Reseller herein. b) Additional Services. During the term of this Agreement, Reseller may increase or decrease the services of the EmeCloud Solution by making appropriate changes in the EmeCloud Control Panel, and such changes will become effective generally within twenty four (24) hours after such changes have been made. Fees will be affected as described in Section 7. c) Updates. From time to time and in EmeCloud’s discretion, EmeCloud may implement Updates which shall be provided free of charge to Reseller. Updates shall not include new or additional service offerings, or support or training services, all of which may be subject to separate pricing schedules as determined by EmeCloud. d)Branding. Reseller may elect to re-brand the EmeCloud Solution under Reseller’s brand name (Private Label) and provide EmeCloud Solution-based services under Reseller’s label. In any event, the parties agree that (i) Reseller, and not EmeCloud, shall determine the prices and terms upon which Reseller’s services are offered to End-Clients; (ii) Reseller is an independent purchaser and reseller of the EmeCloud Solution, and shall not be considered an agent or legal representative of EmeCloud for any purpose, and neither Reseller nor any director, officer, agent or employee of Reseller, shall be, or be considered, an employee or agent of EmeCloud for any purpose whatsoever. Further, Reseller is not granted and shall not exercise any right or authority to assume or create any obligation or responsibility on behalf of or in the name of EmeCloud, including without limitation contractual obligations and obligations based on warranties or guarantees. Except as specifically provided in this Agreement, the operations of Reseller under this Agreement are subject to the sole control and management of Reseller. Reseller hereby warrants and represents that any and all trademarks included in or comprising the Private Label do not violate the intellectual property rights of any third party. e) Promotion. Reseller is hereby granted the right to create and distribute promotional materials and product manuals for the EmeCloud Solution sold under the Reseller Label and, as part of that process, Reseller may use and modify the promotional materials and product manuals provided by EmeCloud to Reseller. 4) Order for Service a) Reseller will process all Service Orders via the EmeCloud Control Panel. b) For items not contained within the EmeCloud Control Panel, the EmeCloud will respond with a Custom Quote for services along with an estimated time frame to implement Custom Services. c) Reseller shall have five (5) business days from EmeCloud’s delivery of the Custom Service to test and accept service. Billing will not commence until the next business cycle.

5) Secure Access

a) EmeCloud shall provide Reseller with a unique user name and password (collectively, “Security Information”) that will permit Reseller to access and use the EmeCloud Control Panel. The Security Information shall be permanently linked to the email address initially provided by Reseller to EmeCloud; therefore, if Reseller modifies or ceases its use of its email address, Reseller shall be required to re-register with EmeCloud and obtain new Security Information. EmeCloud shall have the right to assume, and rely upon, the authenticity of any order placed through the EmeCloud Control Panel using Reseller’s Security Information. Reseller shall keep the Security Information confidential, and shall be exclusively responsible for the security and integrity of the Security Information. Reseller shall promptly notify EmeCloud in the event that Reseller knows or has reason to know that its Security Information has been accessed in an unauthorized manner or compromised to any extent. EmeCloud shall have no responsibility for, and shall be held harmless by Reseller against, any orders fulfilled by EmeCloud that were not requested by Reseller but which were the result of a request placed through the EmeCloud Control Panel using Reseller’s Security Information.

6) Demo Accounts.

a) A limited number of Demo accounts may be provided to the Reseller free of charge to be used to entice end clients to try the EmeCloud Solution- on a very limited time basis and then sign up for the service.

7) Pricing; Purchases. Payment.

a) The EmeCloud Control Panel has the current version of EmeCloud Solution pricing. Prices on the EmeCloud Control Panel are final, and are not subject to set-off, discount or modification whatsoever without EmeCloud’s express written permission. The EmeCloud Control Panel may have additional terms and conditions that limit, modify or otherwise govern the terms of the Service Orders, and Reseller is hereby advised to read all terms contained on the EmeCloud Control Panel before finalizing Reseller’s order. b) For each Client site set up, the minimum pricing increment for the EmeCloud Solution is a monthly charge. There is no proration for periods less than one month. c) Reseller will be charged automatically for the products each calendar month during each and every month in which this Agreement is in effect. If there was no usage, no charges will be applied. d) For the first month when the EmeCloud Solution is implemented and activated, Reseller will be charged for one full month of service-- along with any set up fees. e) There is no monthly minimum usage, and there is no volume discount associated with this Agreement. EmeCloud may change the prices charged under this Agreement at any time upon three (3) months prior notice. Failure of the Reseller to terminate the service will be interpreted as acceptance of the new prices. f) Invoices are sent out in 30 day cycles. All invoices shall be paid in full no later than by the first day of each month after the invoice has been issued. Late payments shall be subject to interest at the lesser of 1.5% per month or the highest interest rate permitted by law (in each case, calculated as of the date when such payment is due). g) All Fees are reported in, and shall be paid in, U.S. dollars. h) Payment may be made by credit card, electronic funds transfer or wire transfer. i) Unless otherwise agreed to in writing by EmeCloud or prohibited by law, Reseller shall pay all federal, state and local tax, transportation tax and other tax imposed on EmeCloud (other than tax on EmeCloud’s income) resulting from the parties’ activities hereunder. j) Remedies. EmeCloud will begin attempts to rectify rejected credit card payments immediately and unpaid invoice balances 10 days after payment due dates. Failure to submit payment within 10 days shall constitute a material breach of this Agreement and such a failure shall provide EmeCloud with the right (but not the obligation) to automatically terminate this Agreement. Reseller understands and agrees that if Reseller fails to pay the Fees when due, EmeCloud reserves the right to disable the EmeCloud Solution to Reseller and/or End-Clients, in part or in whole, until Reseller’s payment is made in full. Reseller shall indemnify and hold EmeCloud harmless for and against any and all claims, causes of action, expenses, losses, costs or fees incurred by Reseller or any End-Client resulting from the suspension of services hereunder.

8) Warranties;

a) EmeCloud represents and warrants that (i) it has the corporate authority to enter into this Agreement and to be bound by the terms contained herein, (ii) it holds all right, title and interest in and to the EmeCloud Solution and/or is an authorized licensor of all elements of the EmeCloud Solution, and has the authority to grant the licenses described in this Agreement, (iii) services provided by EmeCloud will be performed by persons having skills and expertise appropriate for the tasks to which such persons are assigned, and (iv) the EmeCloud Solution will work in material compliance with its functions and features. b) EmeCloud warrants that the EmeCloud Solution does not violate the intellectual property rights of any third party. c) This Section (8) describes all warranties provided to Reseller under this Agreement. Unless otherwise expressly stated in this Agreement, EmeCloud shall not provide, and hereby expressly waives, all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose. The EmeCloud Solution is provided to Reseller on an “as is” basis, and EmeCloud does not warrant or represent that the EmeCloud Solution will be suitable for Reseller’s specific needs, or that there is any particular market for the EmeCloud Solution, or that Reseller’s activities hereunder will be profitable.

9) Limitation of Liability.

RESELLER AGREES THAT EMECLOUD SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF INCOME OR PROFITS, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, OR COST OF RECOVERY ARISING FROM THE USE OF THE EMECLOUD SOLUTION. a) Security. At all times EmeCloud shall use reasonable care, which in all cases shall be no less than industry-standard care, to ensure the security of data and information exchanged or transmitted using the EmeCloud Solution. However, the parties acknowledge and agree that the use of any communications technology, including the EmeCloud Solution, entails certain unavoidable risks, and that no technology is 100% foolproof or immune from attack. Accordingly, Reseller shall hold EmeCloud harmless from and against any claim, cause of action, loss, expense, cost, fine or fee arising from or related to the unintentional or accidental disclosure, misuse, or erasure of the Data, or any breach of security impacting or affecting the EmeCloud Solution. b) Availability. The EmeCloud Solution relies upon the availability of the data center where the EmeCloud Solution is hosted. Although EmeCloud makes every reasonable effort to ensure maximum data center availability, there is a possibility that the data center may become inaccessible or unavailable as a result of code upgrades, operating system instability, power failures, internet outages or other causes beyond EmeCloud’s control. For Service Levels agreed to please refer to Exhibit A. c) Remedy. Reseller must request the credit from EmeCloud in writing within thirty (30) days of the failure. Credits shall be applied only against future fees for the service.

10)Term; Termination.

a) Term. This Agreement shall take effect on the date the Reseller is assigned credentials to the EmeCloud Control Panel (“Effective Date”) and shall continue in force for three (3) years from the Effective Date. If not terminated, this Agreement will automatically renew annually, perpetually. b) Upon termination, the Reseller shall not represent that it has any right to market or distribute Products or Services using any EmeCloud Trademark. All embodiments of EmeCloud Trademarks, trade names, patents, copyrights, designs, drawings, formulas or other data, photographs, samples, literature, and sales aids of every kind shall remain the property of EmeCloud. c) Consequences for Termination. In the event of termination by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of EmeCloud or Reseller. Termination shall not, however, relieve either party of obligations incurred prior to the termination. d) Termination by EmeCloud; For Cause. EmeCloud may terminate this Agreement immediately if Reseller commits a material default under this Agreement and such default is not cured by Reseller within ten (10) days after default. e) Termination; Without Cause. Reseller may terminate this Agreement for any reason upon providing written notice of termination to EmeCloud no less than seven (7) calendar days prior to the effective date of termination. EmeCloud may terminate this Agreement for any reason upon providing Reseller with written notice of termination no less than three (3) months prior to the effective date of termination. f) Termination; Mutual Consent. This Agreement may be terminated upon the mutual, written consent of the parties. g) Reseller is responsible for all fees accrued prior to the termination date. There is no proration for periods of less than one month. h) The Reseller is responsible to move any and all data from the EmeCloud Solution prior to the termination of services. i) No Liability for Termination. EmeCloud shall not be liable to Reseller or any third party for any compensation, reimbursement, losses, expenses, costs or damages arising from or related to, directly or indirectly, the termination of this Agreement for any reason. This waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and of expenditures, investments, or commitments in connection with Reseller’s or any third party’s goodwill or business.

11) Confidentiality.

a) Confidentiality is defined as described in the EmeCloud Confidentiality Agreement which must be agreed to prior to becoming a Reseller. b) Each party’s obligations under this Section 11 shall survive the termination of this Agreement.

12)Ownership; Intellectual Property.

a) At all times, EmeCloud is and shall remain the sole and exclusive owner and licensor of the EmeCloud Solution and any and all trademarks, copyrights, patents, works of authorship, property rights and goodwill relating to the EmeCloud Solution (collectively, “EmeCloud’s Intellectual Property Rights”). Reseller shall not take any action, directly or indirectly, that injures or diminishes, or may tend to injure or diminish, any of EmeCloud’s Intellectual Property Rights, nor shall Reseller encourage any third person to do so. Reseller agrees to inform EmeCloud immediately of any infringement of any of EmeCloud’s intellectual Property Rights of which the Reseller may become aware. b) If Reseller, in the course of re-branding the EmeCloud Solution or otherwise exercising its rights under this Agreement, acquires any goodwill or reputation in or to any of the EmeCloud Solution, all such goodwill or reputation shall automatically be transferred to and shall vest in EmeCloud when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Reseller, and Reseller agrees to take all such actions necessary to effect such vesting.

13) Indemnification.

Reseller shall indemnify and hold EmeCloud harmless from and against any and all claims, expenses, losses, demands, fees (including reasonable attorneys’ fees), costs and causes of action arising from or related to (i) Reseller’s performance under this Agreement, or (ii) the breach by Reseller of any representation, covenant or warranty provided by Reseller to EmeCloud under this Agreement (collectively, “Claims”). EmeCloud shall have the right to control the reasonable disposition and settlement of any Claims and Reseller agrees to cooperate with EmeCloud in the administration, handling, and settlement of all Claims.

14) Miscellaneous.

a) Force Majeure. Neither party shall be liable for any delay or failure to perform hereunder due to floods, riots, strikes, freight embargoes, acts of God, acts of war or hostilities of any nature, laws or regulations of any government (whether foreign or domestic, federal, state, county or municipal) or any other similar cause beyond the reasonable control of the party affected. A party relying on such an event to excuse its performance hereunder shall, as soon as reasonably possible, notify the other party in writing of the nature of that event and the prospects for that party's future performance and shall thereafter, while that event continues, respond promptly and fully in writing to all reasonable requests for information from the other party relating to that event and those prospects. b) Waivers; Amendments. The delay or failure by either party to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed a waiver of that party's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. No amendment or waiver of any provision of this Agreement shall be effective unless it is in writing, and it is signed by the party against which it is sought to be enforced. Upon mutual acceptance and execution of an Amendment, the terms of such Amendment shall be deemed incorporated into this Agreement. To the extent that an Amendment conflicts with the terms of this Agreement, the Amendment shall control. c) Severability. If any provision of this Agreement is held to be void, the remaining provisions shall remain valid and shall be construed in such a manner as to achieve their original purposes in full compliance with the applicable laws and regulations. d) Merger. This Agreement is the sole and complete statement of the obligations and rights of the parties as to all matters covered by this Agreement, and supersedes all previous or contemporaneous understandings, agreements, negotiations and proposals relating thereto. The parties agree that no promises or inducements have been offered or made to Reseller (other than those expressly stated in this Agreement) to induce Reseller to enter into this Agreement and to be bound by the terms contained herein. e) Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors. This Agreement shall not be assigned by Reseller without the prior written consent of EmeCloud, which shall not be unreasonably withheld. f) Captions. Captions contained in this Agreement are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision of this Agreement. g) Attorneys' Fees. If EmeCloud commences any action or proceeding against Reseller to enforce the terms of this Agreement, EmeCloud shall be entitled to an award against Reseller for all reasonable attorneys' fees, costs and expenses incurred by EmeCloud in connection with such action or proceeding (including any mediation or arbitration, and at all levels of trial and appeal), and in connection with the enforcement of any judgment or order thereby obtained. h) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida. The parties agree that the sole and exclusive venue for any and all issues, claims, causes of action or matters arising from or related to this Agreement shall be in the state courts of Manatee County, Florida or, for federal claims and pendant state claims, the Federal Court in and for the Middle District of Florida. i) Notices. Whenever under the provisions of this Agreement, notice is required or permitted to be given to Reseller, EmeCloud may deliver such notice(s) to Reseller by electronic mail (“email”). Email notice shall be deemed given to Reseller when such notice is sent to the last known email address provided to EmeCloud by Reseller, regardless of whether such email address is functional or not. Notwithstanding any provision to the contrary, however, email notice to EmeCloud shall be effective only if EmeCloud subsequently acknowledges receipt of Reseller’s email via a return email to Reseller in which Reseller’s original email is either referenced or reproduced. Notice provided in any method other than by email shall be deemed given either when delivered personally, or by courier, or by facsimile machine with printed transmittal confirmation sheet; or, three (3) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to the party for whom it is intended with copies provided to the address set forth above or to such other addresses as a party shall hereafter designate in writing to another party. Subject to the terms described herein, the parties acknowledge and agree that electronic mail (“email”) and/or digital copies or electronic transmissions satisfy all “writing” requirements under this Agreement. j) Independent Contractor Relationship. The parties are independent contractors to one another, and neither party is an employee, servant, agent, Reseller or joint venturer of the other party. k) Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Manatee County, Florida, i.e., on a Saturday, Sunday or legal holiday, such period shall be extended to and through the next succeeding business day in Manatee County, Florida. l) No Third Party Beneficiaries. The parties are entering into this Agreement solely for themselves and no other party, and nothing contained in this Agreement, whether expressed or implied shall be deemed to confer any rights or remedies (including, without limitation, third party beneficiary rights) upon, or obligate either EmeCloud or Reseller to, any third person or entity.

 

 AGREED AND ACCEPTED (fields required in the electronic form)

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EXHIBIT A

Eme Cloud Cloud Services Service Level Agreement This Service Level Agreement (“SLA”) describes the various types of services and service levels that will be provided to Reseller by EmeCloud for Cloud Services (defined below). In addition, this SLA sets forth the parties’ responsibilities, prerequisites and assumptions that underlie the provision of the services by EmeCloud. EmeCloud agrees to maintain sufficient resources to maintain the services levels set forth herein.

SERVICES

For the purposes of this SLA, “Cloud Services” shall consist of access to all systems and software and as delivered by EmeCloud to Reseller as part of EmeCloud’s Cloud Services total cloud solution. Cloud Services shall not include any hardware, software, third party equipment, telecommunication services or anything beyond the direct control of EmeCloud that is not provided by EmeCloud to Reseller. During the period of time for which Reseller pays EmeCloud to provide technical support for Cloud Services, EmeCloud shall provide to Reseller offsite technical support for Cloud Services on a 24x7x365 basis. Support shall be provided through EmeCloud’s support system. Technical support shall be limited to support for all services and applications as delivered by EmeCloud. The extent to which these services will be supported is that the end client will be able to log into the system and start any provided application. These applications will then be supported to the extent that the end client will be able to access the application and be able to either log in or enter the first screen. End application support will be the responsibility of the reseller. By example: We will support the end client’s ability to start Microsoft Word, open a document and be able to edit, file or print the document. We will not assist in how to make columns in Microsoft Word. 1) Definitions. a) Outage. “Outage” shall be defined as a measure of the time that Reseller loses access to the cloud service due to any system within the direct control of EmeCloud. b) Trouble is considered “chronic” if it results in three (3) or more related service degradations or Outages in one month, or more than six (6) aggregate occurrences of service degradation or Outage, occurring over any three (3) consecutive month periods. c) Planned Maintenance or Repair. Planned Maintenance or Repair includes network upgrades and repairs, equipment upgrades and repairs, power upgrades and repairs and do not constitute an Outage. d) Emergency Maintenance or Repair. Emergency Maintenance or Repair refers to work which, if not accomplished immediately by EmeCloud or Third Party Provider, could result in a serious degradation or loss of Service to the Reseller or the End User. Emergency maintenance or repair includes network, equipment and power facilities and do not constitute an Outage. 2) Technical Standards of Performance m)All cloud services will be available twenty fours a day, three hundred and sixty five days a year except for Planned Maintenance or Repair. 3) Service Interruption a)Service interruption is defined by lack of access to the cloud services from multiple internet connections. 4) Availability and Trouble Response a)EmeCloud shall maintain a twenty-four (24) hours a day, seven (7) days a week point-of contact for Reseller to report to EmeCloud system troubles. 5) Planned Maintenance or Repair a)Maintenance Window. Planned maintenance is performed during a maintenance window of 12:00 midnight to 6:00 AM local time. b)Notification. EmeCloud will provide Reseller with written notice of the Planned Maintenance or Repair by electronic mail no less than five (5) business days prior to starting work. 6) Emergency Maintenance or Repair a)Where prior notice is not practical in the circumstances, EmeCloud reserves the right to perform required emergency maintenance or repairs. Notification will use email on a “best-effort” basis. In all events Reseller will take necessary steps to notify key personnel. Incident Prioritization Upon receipt of a ticket using the EmeCloud ticketing system of an incident requiring service under this SLA, the incident will be classified and prioritized by EmeCloud. The priority of an incident will be determined solely by EmeCloud, considering the reported impact on Reseller’s business and the reported urgency with which a resolution or workaround is needed. Application Service Level This SLA only applies to existing, running applications and users and these SLA’s will not apply to new users added (during the first week the user attempts access to the system) and new applications (within the first week of the application being accessed). All issues during this initial time (Break in Period) will be done on a best efforts basis. The following table describes the overall criteria used by EmeCloud for determining the impact an incident has on Reseller’s business.

Impact

Impact Scope

High

Corporate wide impact. A large majority of users are affected (over 60%) and/or critical business process cannot be performed and/or production system is down.

Medium

Area/region wide or department impact. A large majority of users on a specific region and/or area are impacted by a down situation. A production system’s performance is degraded below critical levels.

Low

A particular user is impacted and/or minor technical component is affected.

The following table describes the overall criteria used for determining urgency on Reseller’s business

Urgency

Urgency Scope

High

Must be executed as soon as possible

Medium

Must be executed before a particular deadline

Low

Not required to be executed at a particular deadline or timeframe

The table below describes the priority classification level that EmeCloud will give to incidents based on the urgency and impact levels described above

Urgency

High

Medium

Low

Impact

Critical

5

4

3

High

4

3

2

Medium

3

2

1

Low

2

1

1

 

Incident Response / Resolution Service Level

Upon determining the priority classification level described above, EmeCloud will provide technical support to Reseller according to the following standard incident response times:

Priority

Description

Response Time *

Resolution Goal *

5

Major Incident

Within thirty (30) minutes

ASAP

4

Immediate

Within two (2) hours

< 6 hours

3

Urgent

Within four (4) hours

< 12 hours

2

Standard

Within one (1) business day.

< 2 business days

1

Non-critical

Within two (2) business days

< 7 business days

* = Duration is calculated from the time the incident is received at EmeCloud’s service desk.

The response time target described above is the time by which an incident is recorded, classified, prioritized and assigned to a support group within EmeCloud for resolution. Resolution is achieved when an incident has been resolved or a reasonable and/or satisfactory workaround is put into place. EmeCloud is committed to a 95% performance target in achieving the response times per quarter.

Uptime Service Level

Uptime Service Level is determined by the amount of time that services and applications are available of use from any location from the internet. This availability of services and applications will be deemed at 99.9% uptime excluding maintenance windows. EmeCloud reserves the right to apply up to 8 hours of maintenance per week to any and all systems. EmeCloud will attempt to minimize the impact of these maintenance windows upon the end client to the best of its ability; however maintenance may be applied at any time by EmeCloud in order to sustain a proper cloud environment.

Remedies.

A. If EmeCloud’s fails to meet any service level, Reseller will be entitled to a credit toward future invoices for services performed in an amount calculated as follows: 1) If EmeCloud fails to meet service levels up to five percent (5%) of the time (as judged by all service incidents properly reported to EmeCloud in a given calendar quarter), Reseller shall receive a credit of 20% of the monthly invoice(s) for the period in question; 2) If EmeCloud fails to meet service levels between 6% and 10 % of the time (as judged by all service incidents properly reported to EmeCloud in a given calendar quarter), Reseller shall receive a credit of 40% of the monthly invoice(s) for the period in question; 3) If EmeCloud fails to meet service levels 11% and 25% of the time (as judged by all service incidents properly reported to EmeCloud in a given calendar quarter), Reseller shall receive a credit of 60% of the monthly invoice(s) for the period in question. 4) If EmeCloud fails to meet service levels 26% or more of the (as judged by all service incidents properly reported to EmeCloud in a given calendar quarter), Reseller shall receive a credit of 100% of the monthly invoice(s) for the period in question. B. The service credits listed above shall be Reseller’s exclusive remedy for any and all failures by EmeCloud to meet requisite service levels. In no event shall EmeCloud be responsible for any direct, indirect, consequential, exemplary, special or punitive damages arising from or related to EmeCloud’s failure to meet any service level. C. Credit shall only be issued where Reseller alerts EmeCloud of a service level failure within thirty (30) calendar days following such failure. Reseller’s failure to notify EmeCloud within the period stated herein shall result in Reseller’s waiver of its right to receive any such credit. All notifications must be in writing. D. The maximum credit provided to Reseller under this SLA is limited to an amount not greater than three (3) months of service. E. EmeCloud will not be responsible for its failure to meet the service levels under this Agreement to the extent such failure would not have occurred but for: (i) Reseller’s failure to perform its obligations under this Agreement or any other agreement between EmeCloud and Reseller; (ii) the wrongful acts or omissions of Reseller or its third party vendors (including those third party vendors that are managed by EmeCloud); (iii) the failure of any of Reseller’s employees to adequately perform their tasks related to the Services; (iv) unreasonable, untimely, incomplete or inaccurate information from Reseller; (v) Reseller’s failure to make available information, materials, software, hardware, equipment or personnel in the manner required by this Agreement; (vi) the failure of equipment in a manner that is not EmeCloud's fault; or (vii) circumstances beyond EmeCloud’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services, or EmeCloud’s inability to obtain materials, supplies, or power used in or equipment needed for provision of the services. F. Notwithstanding any provision to the contrary, credits under this SLA shall only be provided where Reseller is not in default of any of the terms or conditions of this SLA or any other agreement between EmeCloud and Reseller. G. Local issues including local telecommunications services, routers, firewalls, switches, proper configuration of local workstations or printers are excluded from this SLA. Revision 05062013