Service Level Agreement
By entering, connecting to, accessing or using the Site and/or the Account and/or using any of the Products and Services, you acknowledge that you have read and understood the following provisions of this Service Level Availability ("SLA") and you agree to be bound by them and to comply with all such provisions regarding your use of the Site, Account and the Products and Services and you acknowledge and agree that this SLA constitutes a binding and enforceable legal contract between Kamatera and you.
IF YOU DO NOT AGREE TO THIS SLA, PLEASE DO NOT ENTER TO, CONNECT TO, ACCESS OR USE THE SITE, ACCOUNT AND/OR ANY OF THE PRODUCTS AND SERVICES.
Customer is fully aware and acknowledges that although the Products and Services are operational and available to at least 99.9% of the time, there is still a portion of the Products and Services, for various and multiple reasons, that may not be provided free and clear of interruptions and underperformance, at all times.
1. Definitions. The following definitions shall apply to this SLA:
A."Service Year" means a 12 month period during which Kamatera provided the Customer with the relevant SLA Service.
B."99.9%" means a potential unavailability of each of the SLA Services for an aggregate period of 8 hours per each Service Year.
3. Refund Amount
In the event that Kamatera fails to meet such guarantee for service availability as set forth in Section 2 above hereto, Kamatera shall consider, at its sole and absolute discretion and as an act of good faith, to refund or credit the Customer with the lower of (a) US$5000 or (b) an amount equal to one month of billing.
4. Service Level Refund Eligibility
In order for the Customer to be eligible to receive any refund under this SLA, the Customer should act and comply as follows:
A. Submit Kamatera's customer support with a written claim regarding any incident of which it is believed that refund is applicable (the "Claim"). The Claim must be submitted within 14 days as of the occurrence of such incident.
B.Customer must provide Kamatera's customer support with all relevant details regarding the Claim, including, without limitation, detailed description of the incident(s), duration of incident, the affected storage account(s) and any attempts made by Customer to resolve the incident.
C.Kamatera will examine and dedicate each Claim with the utmost care. In any case of which Kamatera using its sole and exclusive discretion will accept the Customer's Claim, then the relevant refund will be provided, subject to the provisions of this SLA.
5. Exclusions to SLA
Customer shall NOT receive any refund or credit under this SLA in connection with any failure of Kamatera to provide the SLA Service caused by:
A. Circumstances beyond Kamatera’s control, including, without limitation, acts of Force Majeure (as defined below), acts or omissions of a third party not engaged or authorized by Kamatera.
B. Unavailability, interruption or delay in telecommunications outside of Kamatera’s control.
C. Failure or delay of third party services or software.
D. Backup corrupted file.
E. Customer's failure to comply with any of Kamatera's recommendations and/or guidance regarding issues concerning the SLA Services and/or to conduct, in accordance with Kamatera's recommendations and/or guidance, improvements and/or updates in Customer's resources, including, without limitation, to Customer's system, hardware and software.
F. Usage patterns or traffic that exceeds the reasonable performance parameters of Customers specific installation.
G. Downtime caused by scheduled maintenance, when at least 7 days prior notice is provided by Kamatera.
H. Downtime caused by any outage or stoppage of network connectivity or infrastructure.
I. Downtime caused by emergency maintenance, when at least 24 hours’ notice is provided by Kamatera.
J. DNS issues outside the direct control of Kamatera.
K. False SLA breaches reported as a result of outages or errors of any Kamatera measurement system.
L. Customer’s act or omission, including, without limitation, any negligence, willful misconduct, or use of the SLA Services in breach of the Terms and/or any applicable law.
M. At Kamatera's sole discretion and for any reason.
Without derogating from the above, Kamatera shall only offer service level refund or credit in case of underperformance from Kamatera's part only, in accordance with the terms and conditions of the Terms and this SLA, and shall neither be liable nor offer any refund or credit, in any case of underperformance of any third party, including, without limitation, factors outside of reasonable control, avoidance to implement Kamatera's instructions and modifications and acts or omissions of the Customer or any of customer's employees, agents, contractors, vendors or anyone else on behalf of the Customer.
Without derogating from the above and for the removal of any doubt, this SLA does not cover any unavailability, partial availability, inapplicability and/or malfunction of the SLA Services, derived and/or resulted by any actions, omissions or malfunctions of third parties, including without limitation, any network and communication suppliers, infrastructure suppliers, cloud services suppliers and hardware suppliers.
This SLA and any of the provisions hereto shall cease to be valid and shall immediately expire if such provisions are contrary to the provisions Kamatera is bound by under those SLA's executed by Kamatera and any of Kamatera’s providers.
To remove any doubt AND NOTWITHSTANDING ANY OF THE ABOVE, Kamatera reserves the right to reject any CLAIM FOR refund OR CREDIT to the Customer under this SLA, at Kamatera's sole discretion and for any reason.
6. Force Majeure
Neither party shall in any event be held liable with respect to the other party or to others for losses or damages caused by non-performance, or a delay in the performance, of their obligations under this SLA, to the extent that the same resulted from circumstances amounting to force majeure, including, inter alia, strikes, riots, fires, floods, war, terror attacks, hurricanes, earthquakes, windstorms, acts of God and acts of the state or of public authorities, or other causes beyond the reasonable control of the party affected thereby.
A. The laws of the State of Israel, shall apply to the SLA and the sole and exclusive place of jurisdiction in any matter arising out of or in connection with the SLA shall be the competent courts of Tel Aviv-Jaffa.
B. No failure, delay of forbearance of either party in exercising any power or right hereunder shall in any way restrict or diminish such party's rights and powers under the SLA, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof.
C. Customer may not assign or delegate any of its rights, duties or undertakings under the SLA to any third party without the express prior written consent of Kamatera, and any unauthorized assignment or delegation shall be null and void. Kamatera may assign the SLA without the need for any consent but the notification to the Customer.
D. In the event it shall be determined under any applicable law that a certain provision set forth in the SLA is invalid or unenforceable, such determination shall not affect the remaining provisions of the SLA.
E. The preamble to the SLA constitutes an integral and indivisible part hereof.