SERVICE LEVEL AGREEMENT between Open Source Support Desk B.V. and Hargray, Inc. Copyright 2011 by Open Source Support Desk B.V. All rights reserved. This document is protected by copyright. No part of this document may be reproduced in any form by any means without prior written authorization of Open Source Support Desk B.V. and its licensors, if any. Page 1 of 9
1. Purpose of this document This document defines the terms and conditions of the Service Level Agreement for maintenance services and optional End User Support for Joomla, WordPress and/or Drupal Content Management System(s) (the Agreement ) between Open Source Support Desk B.V. ( OSSD ) and Hargray, Inc. (the Client ). Contract Number Domains covered Application Number of Applications per SLA Number of Technical Contacts per SLA Description Service Level Agreement Support Channels Support Hours Purchased Software Licenses Remote Access Services Payment Method Contract Period Termination Support Hours Update Release Schedule Initial Response Time Critical Updates Plugin or Module SLA2011-0902 Any domain owned or operated by the Client A single installation of a Joomla, WordPress or Drupal Content Management System ( CMS ), including up to fifty (50) Plugins or Modules per installation. One (1) Three (3) Technical Contacts per SLA included To provide software maintenance services and support services (optional) for CMS s and installed Plugins or Modules. On-site support is not included. Enterprise Service Level - Email: support@opensourcesupportdesk.com; - Web: https://www.opensourcesupportdesk.com/online-helpdesk; or - Outbound phone support Not applicable, optional If applicable: Cost of license billed within 30 days If applicable: Cost of license, billed within 30 days Recurring Fees: Yearly payment in advance per: - Credit Card (via PayPal, PayPal account not required) One-off Fees: Monthly payment, 14 days payment term: - Credit Card (via PayPal, PayPal account not required) Twelve (12) months; automatic renewal for twelve (12) months At the end of the (contracting) year, one (1) calendar month prior written notice 9 am 8pm CST, Monday to Friday, excluding OSSD s regularly scheduled public holidays Enterprise Service Level: Weekly Releases Enterprise Service Level: 24 Hours Installed software other than the core CMS (e.g. Component, Module, Plugin, Template or custom code) Page 2 of 9
2. Maintenance Services 2.1 What is covered under this Agreement This Agreement covers technical software maintenance for CMS powered web sites on a proactive and regular basis. Subject to the terms and conditions set forth herein the contracted service allocated in this Agreement typically covers the following areas: Core Updates. Technical maintenance/periodical installation of new versions and patches of the core CMS in use, upon release by the respective open source community(ies), including testing. Plugin or Module Updates. Technical maintenance/periodical installation of new versions and patches of Plugins or Modules in use, upon release by the respective provider(s), including testing. This does not include solving browser compatibility issues or any other HTML or CSS validation issue. Browser compatibility and/or HTML or CSS validation issues (existing or new) can be handled upon request as part of a Support Contract (optional). Optional Daily Database Backups. Daily backups to Amazon S3, including restore from backup upon request. The SLA for the backup storage itself is set by Amazon s terms. SecureLive. Patented live web site hack protection service which monitors websites 24/7 (included for Professional and Enterprise SLA only). 24/7 Performance Monitoring. Global web site monitor with a 5-minute check interval from over 60 locations (included for Enterprise SLA only). OSSD will notify Technical Contacts by email and sms with alerts when the site is down for more than five (5) minutes from two (2) locations. 2.2 Maintenance Policy 1. Update is defined as keeping the CMS and/or its Plugins or Modules up-to-date by installing the latest version and patches, as released by the respective initial software provider (e.g. original lead developer), in accordance with the Release Schedule as defined in the SLA. It is not intended for either development work or migrations. 2. Critical Updates are those Updates that are qualified as required due to a critical security vulnerability. 3. Updates for a CMS or it s Plugins or Modules will be executed proactively, without having the Client to submit a Ticket. 4. All Updates will be evaluated and tested first by OSSD. Major Updates may need the prior written consent of the Client before taken into production. 5. In order to minimize or prevent any downtime, OSSD will stage tested Updates to production in low traffic hours (i.e. Sunday night). 6. OSSD reserves the right to subcontract any or all of the work to be performed under this Agreement, and retains responsibility for the work subcontracted. 7. OSSD assumes no liability whatsoever for proposed resolutions or fixes. 8. This Agreement expires one (1) year from the Starting Date and will be renewed automatically for successive renewal terms of one (1) year, unless terminated at the end of the (renewed) contracting year with one (1) month prior written notice. 9. OSSD reserves the right to distinguish between Updates and new developments or migrations. New developments or migrations will be completed under a different timeframe and may incur additional charges. 10. Maintenance services will be provided to the Client s Technical Contact. 11. The Client will, in addition to all amounts payable under this Agreement, pay all applicable sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions set forth in this Agreement, excluding only taxes based on OSSD s income. 12. The web site may be using third party services (analytics, web site trackers, news feeds, etc.). OSSD has no control over what third party sites do and takes no responsibility for loss of information due to actions of these sites. 13. The web site is using open source software and might be using encrypted software (mainly Plugins or Modules). OSSD has no control over such software and its development and takes no responsibility for any loss of information or any other issue or problems due to this software. 14. The General Terms and Conditions of FENIT ( terms ), filed at the Office of the Clerk of the District Court in The Hague, The Netherlands, on 3 rd June 2003, under number 60/2003. In case of any discrepancy this Agreement latter will prevail. Page 3 of 9
15. OSSD represents and warrants that the services provided herein will (i) be delivered by competent personnel in a professional and workmanlike manner, according to prevailing industry standards; (ii) materially conform with the specifications set forth in this Agreement. 16. OSSD may require a Plugin or Module to be upgraded to a later or more stable release in order to comply to the Release Schedule. OSSD may require the substitution of a Plugin or Module for one or more similar suitable Plugins or Modules for this purpose. Substitutions may be recommended by OSSD but are made at the sole discretion of the Client. The Client customizations to CMS core files may limit OSSD's ability to comply to the Release Schedule. OSSD may recommend or require such modifications be removed in favor of alternate solutions using standard core and contributed Plugins or Modules, or by using other standard, published core patches. 2.3 Release Schedule The release schedule for Updates will vary depending on the subscription purchased. Basic SLA Professional SLA Enterprise SLA Release Schedule of Updates Initial Response Time Critical Updates Starting Dates SLA Quarterly Monthly Weekly 72 Hours 48 Hours 24 Hours Date of email confirmation by PayPal for the initial payment of the SLA subscription fee. Page 4 of 9
3. Support Services (Optional) 3.1 What is covered under this Agreement OSSD will provide Technical Contacts 24/7 access to professional support for any CMS related support request or issue ( End User Support ), next to proactive and continuous maintenance services. Diagnosis and repair support services entitles the Client to engage OSSD's Support Team in the diagnosis and repair of CMS functionality issues during the assembly or operation of a CMS powered web site. Diagnosis and repair support includes resolving issues with any core, contributed or custom Plugin or Module; with installation, configuration and usage tasks; with Plugins or Modules or themes not interacting as expected; and with the web site not operating as expected within it's environment. Diagnosis and repair may not be possible with certain integrations or custom Plugins or Modules. The Client will be able to choose per SLA if End User Support will be part of the SLA and decide upon the number of hours per month covered in the End User Support. OSSD will assign any Ticket submitted by a Technical Contact based on Initial Response Times set in the SLA for support services. 3.2 End User Support Policy OSSD will provide additional End User Support for any CMS related support request or issue submitted by the Technical Contact of the Client in the event the SLA covers additional Support Services. 1. Ticket is defined as any support request by a Technical Contact of the Client through either OSSD s Online Helpdesk or by email to support@opensourcesupportdesk.com. Tickets will be completed in accordance with the Service Level and priority of request. 2. Time is based on actual time involved in completing the Tickets submitted (time-and-material based), including time spent evaluating and diagnosing the problem. Support is charged per use at a minimum of fifteen (15) minutes, and additional fifteen (15) minute increments thereafter, at the sole discretion of OSSD. 3. When a single Ticket is expected to use over eight (8) hours, or has used eight hours, OSSD will notify the Client for approval to proceed or continue. The Client gives unconditional permission to OSSD to use up to eight (8) hours for any given case without prior approval. 4. Client chooses a minimum Hours Purchased per Month upon sign up. 5. The Hours Purchased do not carry hours from one month to the next. These hours are reserved for the Client s usage during the month, should the Client need them. 6. There is no discount or refund if no Tickets are submitted during a monthly support cycle. OSSD reserves the Client s time whether it is used or not. 7. OSSD guarantees the Initial Response Times for End User Support per SLA below, however due to the nature of Tickets, OSSD cannot guarantee a time to resolution. INITIAL RESPONSE TIMES Enterprise SLA Priority 1. Critical 1 Hour, 24/7 Priority 2. High Priority 3. Medium Ticket Priority 4. Low 4 Business Hours 1 Business Day 1 Business Day 8. In case OSSD does not meet the Initial Response Time on any Priority 1 Critical Ticket, Client will be entitled to a full month s credit of the SLA Support Service Fee upon request. Page 5 of 9
9. OSSD may require a Plugin or Module to be upgraded to a later or more stable release before continuing with the diagnosis or repair of an issue. OSSD may require the substitution of a Plugin or Module for one or more similar suitable Plugins or Modules to resolve an issue. 10. Note that OSSD's ability to diagnose and repair an issue may be limited by the hosting provider practices or policies. OSSD will make reasonable commercial efforts to work with the Client's hosting providers to resolve CMS environment or functionality issues. OSSD is not the hosting provider s customer and there may be limitations in a hosting capabilities or policies that only the Client can pursue if changes are needed. Final authority and responsibility related to the operating environment falls to the Client. 11. OSSD may request visible or direct system access to diagnose and resolve issues. Granting such access is at the sole discretion of the Client. OSSD may also request that code be sent to OSSD to facilitate diagnosis and repair of issues. Sending code to OSSD is done at the sole discretion of the Client. Client code will be treated as proprietary Client information and OSSD will not use or distribute the Client code without expressed written permission of the Client. 12. Tickets are intended to facilitate the identification and resolution of diagnostic/repair support requests and issues between the OSSD Support Team and the Client s Technical Contacts on a given subscription. A Technical Contact will receive an initial response from OSSD in accordance with their defined Service Level and the Priority Level of the Ticket. 13. A Ticket is an individual support request or issue that focuses on one subject with CMS software or OSSD's product or service e.g. use of a specific CMS Plugin or Module or assistance with a specific problem or error message. A single Ticket may involve multiple interactions with OSSD Support Team. 14. Access to OSSD Tickets is included with no limit on the number of Tickets that can be submitted. All information captured within the process of resolving the Ticket is private, accessible only to registered Technical Contacts and members of the OSSD Support Team. 15. For subscriptions with email and/or phone support, a Ticket is a required first step to submit a support request or issue to the OSSD Support Team. Once submitted, a Technical Contact may contact OSSD via email for further assistance on their Ticket. All email communications to the OSSD Support Team should include the Ticket ID Number in the subject line to ensure a timely response. 16. OSSD subscriptions include outbound telephone support as a support channel. Once a support request or issue has been logged in the OSSD Online Helpdesk via a Ticket, Technical Contacts can be contacted by OSSD's Support Team via phone to resolve their support request or issue. 17. OSSD may fix a bug and supply the Client with the fix, or OSSD may advise the Client on implementing the fix themselves depending on the Client's urgency, capability and situation. 18. Plugin or Module bug fixes may be submitted to the relevant Plugin or Module provider and it remains the Plugin or Module provider's independent decision to commit the fix for general availability or not. If the Plugin or Module provider decides OSSD's fix is not aligned with present or future direction of the Plugin or Module, and if the fix is not committed, then it becomes the Client's responsibility to maintain the fix through subsequent upgrades as if the module were a custom module. 19. OSSD may determine certain repairs are beyond the scope of subscription support and may decline to commit the resources necessary to perform a repair. Specific resolutions or resolution times are not guaranteed. Page 6 of 9
3.3 Priority Level Definitions Below is a list of the standard priority definitions that OSSD uses to classify Tickets: 1. Priority 1 (Critical) A Priority 1 Ticket includes a catastrophic production problem which may severely impact the production systems, or in which the Client s production system is down or not functioning; loss of production data and no procedural workaround exists. 2. Priority 2 (High) A Priority 2 Ticket includes a problem where the CMS is functioning but in a severely reduced capacity. The situation is causing significant impact to portions of the Client s business operations and productivity. The CMS is exposed to potential loss or interruption of service. 3. Priority 3 (Medium) A Priority 3 Ticket includes a medium-to-low impact problem which involves partial non-critical functionality loss. One which impairs some operations but allows the user to continue to function. This may be a minor issue with limited loss or no loss of functionality or impact to the Client s operation or issues in which there is an easy circumvention or avoidance by the end user. 4. Priority 4 (Low) A Priority 4 Ticket includes a general usage questions or support request for a modification. There is no impact on the quality, performance or functionality of the product. 3.4 Prioritization Higher priority level issues are prioritized over lower priority level issues for any given Client and across all issues handled by OSSD's Support Team. Professional SLA and Enterprise SLA subscribers receive priority as an entitlement to those subscriptions. Page 7 of 9
4. Subscription Procedure In order to allow the Client to sign up for a SLA, OSSD has set up a dedicated section on its website under www.opensourcesupportdesk.com/hargray in order to: Subscribe for a SLA; Manage Technical Contacts per SLA; and Manage Application Login Details. OSSD will setup a new SLA in one (1) Business Day and confirm the setup, including personal login details, to the Technical Contacts under the SLA upon receival of the submitted forms. 5. Client Obligations As a condition to receiving services under this Agreement, the Client agrees to do the following. 1. Technical Contact. The Client s Technical Contact will be responsible for reviewing, verifying, and prioritizing the Client s support requests as well as coordinating associated Client activities under this Agreement. When contacting OSSD, the Technical Contact will have readily available the software version number and browser version numbers used. 2. Changelogs. The Client will provide OSSD with changelogs describing all modifications to the core CMS and Plugins or Modules. 3. Technical Infrastructure. The Client is responsible for Release Management of the operating system and/or server software of its hosting environment. The physical server, network, operating system, network settings, DNS software, firewall software, anti-virus software and any other server related item is not covered by OSSD s service offering. 4. Remote Access. The Client understands and agrees that the completeness and accuracy of the information the Client provides to OSSD may affect OSSD s ability to provide its services. The Client agrees to provide OSSD s Support Team access to its Technical Infrastructure in order for OSSD to provide services under this Agreement. The Client will provide OSSD with sufficient documentation, information, assistance, support and test time on Client s Application and hosting environment, to duplicate the problem, certify that the problem is with the Application and certify that the problem has been corrected. 5. Additional Logins. The Client agrees to provide logins for third party web sites used to access online services (e.g. Analytics) and download CMS related software (e.g. Plugins or Modules) to allow OSSD access to updates and documentation for this software provided by these software developers. Page 8 of 9
APPENDIX I 1. Warranty Disclaimer. 1. EXCEPT AS EXPRESSLY PROVIDED IN THE SERVICES DESCRIPTION, OSSD, THE SERVICES AND THE SUPPORT ARE PROVIDED TO HARGRAY STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. OSSD AND ITS LICENSORS AND PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) THE SERVICES OR SUPPORT WILL MEET HARGRAY S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICES OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND OSSD IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 2. Limitation of Liability. 1. Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY OR OSSD S LICENSORS OR PROVIDERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SUPPORT OR THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 2. Limitation of Damages. In no event shall OSSD S total liability to HARGRAY for all damages, losses and causes of action (whether in contract, tort, including negligence, or otherwise) exceed THE AMOUNT THAT HARGRAY PAID TO OSSD FOR THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. ADDITIONALLY, IN NO EVENT SHALL OSSD S LICENSORS OR PROVIDERS BE LIABLE FOR ANY DAMAGES OF ANY KIND. 3. Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 4. Allocation of Risk. The sections on limitation of liability and disclaimer of warranties allocate the risks in this Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. Page 9 of 9