This Online Service Agreement (“Agreement”) is made between Checkbox Survey, Inc., its affiliates and subsidiaries (“Vendor”) with its principal address at 44 Pleasant Street, Suite 110, Watertown, MA 02472and the Customer (as defined below).  This Agreement, including the attached Schedule(s), is effective on the date Customer clicks “I agree” or signs this Agreement and thereby agrees to the terms of this Agreement (the “Effective Date”).

The terms of this Agreement may be modified at any time and from time to time. The most recent revision will be posted on www.checkbox.com. By using the Service (as defined below), Customer agrees to be bound by the terms of the Agreement then in effect. Continued use of the Service following any modification of the terms will constitute Customer’s acceptance of the terms of the Agreement, as modified.

1. Definitions. The following definitions (and additional definitions below) will apply:

1.1.       “Activation Date” is defined in Section 22.

1.2.       “Customer” means the legal entity or individual that agrees to the terms of this Agreement.  The individual clicking “I agree” represents and warrants that he/she has the legal authority to agree to the terms and conditions contained herein.

1.3.       “Customer Data” means data, information or material provided or submitted by Customer or any User to Vendor in the course of utilizing the Service.

1.4.       “Customer Representative” means the Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.

1.5.       “Pricing Schedule” means Schedule A to this Agreement.

1.6.       “Service” means Vendor’s subscription-based online survey solution for an organization’s internal use to develop and deploy online survey and forms within its business and applicable documentation on Vendor’s web site.

1.7.       “Term” means the term of this Agreement as specified in Section 21.

1.8.       “User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by Vendor at Customer’s request).

1.9.       “Vendor Content” means Vendor-supplied text, audio, video, graphics and other information and data available by means of the Service or on Vendor’s web site.

2. Customer Use of the Service

2.1.       Vendor grants Customer a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement.  Vendor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.

2.2.       Customer is licensed during the Term to store, print, and display the Vendor Content and to permit Users to access it only in connection with use of the Service.  No other use of Vendor Content is permitted.  Customer will maintain and will require its Users to maintain Vendor Content as Confidential Information (as defined below) of Vendor.

3. Number of Authorized Users

Customer is initially authorized to permit use by the number of Users listed in the Pricing Schedule or purchased and paid for through Vendor’s website. Customer, by its Customer Representative, may add to the number of Users by contacting Vendor customer support by email or phone or by utilizing applicable management features of the Service.  Customer will be bound by the instructions and authorizations provided by its Customer Representative.

4. Fees Generally

As a condition of use of the Service, Customer agrees to pay fees as set forth in the Pricing Schedule or as Vendor and Customer otherwise agree in writing.

5. User-Based Fees; Payment

5.1.       Subject to the fee structure and calculations stated in the Pricing Schedule, license fees shall be due and payable as follows: (i) for customers that have an annual subscription from date of access, Customer must prepay (by check, wire, ACH or credit card) the annual fees prior to the commencement of a new annual term; and (ii) for customers on a monthly payment plan, Customer must pre-pay (by credit card) prior to the commencement of a new monthly term.  A User is considered billable if his or her account (with a username and password) is available for login and use at any time during a month for at least 1 day during any month.  Customer agrees that charges will apply for all billable User accounts including those that have been inactive during a particular month. A User account may not be shared or used by more than one User.

5.2.       Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars.

6. Non-Payment

6.1.       In addition to other applicable remedies, Vendor reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement if Customer’s account becomes past due by more than thirty days.

6.2.       Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs. Customer will be charged all applicable fees, including fees for all Users then authorized, during any period of suspension.

7. Account Information Submitted to Vendor

Customer agrees to provide Vendor in writing with billing and contact information as Vendor may reasonably require, including Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact, as well as the name, User name and password of the Customer Representative. Customer agrees to update this information promptly by means of email tosales@checkbox.com, and in any case within 15 days, if there is any change.

8. Appropriate Use of the Service

8.1.       While Users may be any persons that Customer authorizes to use the Service for Customer’s business purposes, including, but not limited to, Customer’s employees and contractors, Customer may not sublicense, rent, resell or supply the Service for use in, or for the benefit of, any other organization, entity, business, or enterprise without Vendor’s prior written consent.

8.2.       Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Customer will be responsible to ensure that its Users do not submit any Objectionable Matter. In addition, Vendor may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Vendor web site; Customer and Customer’s Users will be bound by any such rules.  Vendor reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any Vendor rules regarding appropriate use, but is not obligated to do so. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and the Vendor Content, including laws involving private data and any applicable export controls. Vendor reserves the right to terminate this Agreement for cause in case the Customer breaches the provisions of this Section 8.

8.3.       Vendor reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to Vendor’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003.  Any such spamming activity by Customer will be a breach of this Agreement and Vendor may immediately suspend Customer’s use of the Service in the event of such breach.  Such suspension may be lifted upon the Customer providing satisfactory evidence to Vendor of compliance with the terms and conditions of this Agreement.

9. Passwords and Access

Customer is responsible for all activities that occur under Customer’s User accounts. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. Customer agrees to notify Vendor immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.

10. Customer Data

10.1.    All Customer Data submitted by Customer to Vendor, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.

10.2.    Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Vendor will not use the Customer Data for any purpose other than to provide the Service to Customer and for statistical reporting purposes. Vendor may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Vendor.

10.3.    Vendor will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use.  Vendor’s security policies in effect from time to time can be accessed on Vendor’s web site.

10.4.     If Customer’s intended use of the Service includes gathering data that is Protected Health Information (PHI) as defined by the Health Insurance Portability and Accountability Act (HIPAA), Customer agrees to notify Vendor in advance of collecting such data so that Customer and Vendor may sign a Business Associate Agreement (BAA) as appropriate, and so that Vendor may ensure that Customer’s account includes the necessary features required to protect PHI under HIPAA. Customer further agrees that it will enable all security features of the Service under Customer’s control that are required to comply with HIPAA.

11. Limited License to Customer Data

Subject to the terms and conditions of this Agreement, Customer grants to Vendor a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service.

12. Vendor’s Ownership

Vendor and its suppliers retain all rights, title and interest, in, and to, the Service and Vendor Content. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The Vendor name, the Vendor logo, and the product names associated with the Service are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent.

13. Restrictions on Use of the Service

Customer may not alter, rent, resell or sublicense the Service or provide it as a service bureau. Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Vendor Content or (iv) copy any features, functions or graphics of the Service or the Vendor Content.  Customer will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or the Vendor Content except as expressly permitted in this Agreement is prohibited.

14. Privacy

Vendor agrees to implement its privacy policies in effect from time to time. Vendor’s privacy policies can be accessed on Vendor’s web site. Vendor reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

15. Warranty Regarding the Service

Vendor warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via Vendor’s web site.

16.Service Level

The Service will meet the applicable service level stated in Schedule B. If Vendor does not achieve such service level, Vendor will provide Customer upon request with a credit as described in Schedule B as Customer’s sole and exclusive remedy. To claim a remedy under this Section, Customer is required to notify Vendor within 15 days of the occurrence of the failure to provide the applicable service level.

17. Additional Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.

18. Indemnification

18.1.    Vendor will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from a court’s final determination that the Service infringes a valid United States copyright, patent, trademark, or misappropriation of a trade secret (other than that due to Customer Data). In case of such a claim, Vendor may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Vendor may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.

18.2.    Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 8 (Appropriate Use of the Service) or 9 (Passwords and Access) above.

18.3.    Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Vendor of all costs (including attorneys’ fees) incurred by Vendor as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Vendor for its staff time in responding to such third party subpoena or compulsory legal order or process at Vendor’s then applicable hourly rates.

18.4.    In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

19. Disclaimers and Limitations

19.1.    THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  EXCEPT AS STATED IN SECTIONS 15, 16 AND 17 ABOVE, THE SERVICE AND VENDOR CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.  VENDOR DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. VENDOR IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.

19.2.    Except with regard to Vendor’s obligations under Section 20 (Confidentiality), in no event will Vendor’s aggregate liability exceed the license fees due or paid for the 12 month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to Vendor’s breach of Sections 20 (Confidentiality), in no event will Vendor be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).

20. Confidentiality

20.1.    “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement.  Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.

20.2.    Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.

20.3.    Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement.  Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder.

20.4.    Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control.  The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.

20.5.    In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.

21. Term and Termination

21.1.    The Term commences on the “Activation Date”, which will be the date that Customer signs up for the Service.  The Term of the Agreement is for the Initial Term and any Renewal Term, as such terms are defined below.

21.2.    For Customers that have an annual subscription, the initial term of this Agreement (“Initial Term”) will begin on the Effective Date and will end one year from the Activation Date. This Agreement will automatically renew (each a “Renewal Term”) for successive one-year periods beginning at the end of the Initial Term, unless Customer provides written notice of termination not less than thirty (30) days before the end of the Initial Term or current Renewal Term, as applicable. Applicable pricing, including monthly minimum fees, will continue unchanged from the previous term unless Vendor notifies Customer of changes in pricing at least 30 days prior to the expiration of the Initial Term or current Renewal Term, as applicable. To the extent Customer has a monthly term subscription, the Initial Term of this Agreement will begin on the Effective Date and will end one month from the Activation Date.  The Agreement will automatically renew for successive one-month periods, unless terminated earlier.  Customer may cancel the Agreement and any subscription term with written notice prior to the start of each monthly renewal period. Vendor reserves the right to terminate this Agreement for convenience not less than thirty (30) days notice; provided, in the event of such Vendor termination, any fees paid in advance for any unused portion of any subscription term will be returned to Customer.

21.3.    Vendor, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 10 business days of notice of such breach.  In addition, Vendor may terminate the account data upon termination.

21.4.    Any termination by Customer prior to the end of the Initial Term or any Renewal Term without sufficient notice as described in 22.2 will subject Customer to an early termination (acceleration) fee. The early termination fee is calculated as the remaining months of the then contract term (that is the Initial Term or the current Renewal Term) multiplied by the applicable minimum monthly User fees under the Pricing Schedule plus any other outstanding fees or amounts due.

21.5.    The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for Vendor’s discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 6 (Overdue Payments), 10 (Customer Data), 12 (Vendor’s Ownership), 13 (Restrictions on Use of the Service), 18 (Indemnification), 19 (Disclaimers and Limitations), 20 (Confidentiality), 21.5 (Survival of Provisions), 22 (Notice), 24 (Non-Solicitation), and 25 (Miscellaneous).

22. Notice

Vendor may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Vendor by email, provided such email is acknowledged or by mail to Vendor’s headquarters (attn., President). A party may, by giving notice, change its applicable address, email, or other contact information.

23. Assignment

This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

24. Non-Solicitation

During the Term of this Agreement and for a period of one year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Vendor or (ii) hire or engage for any services any person employed by Vendor.

25. Miscellaneous

25.1.    Choice of Law; Jurisdiction.  This Agreement shall be governed by and interpreted in accordance laws of the Commonwealth of Massachusetts, excluding its conflicts of law principles.  The parties agree to exclude the applicability of the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN MIDDLESEX COUNTY, MASSACHUSETTS, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS.

25.2.    Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

25.3.    No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement or use of the Service.

25.4.    No Waiver. The failure of Vendor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.

25.5.    Publicity.  Customer consents to the use of its company name and/or logo on Vendor website or in Vendor advertising or promotional literature, provided that such advertising and promotional literature only refers to Customer as a customer of Vendor.

25.6.    Force Majeure.  Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, terrorism, war or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.

Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.

Schedule A

Pricing Schedule

Schedule B

Service Level Agreement

1. Vendor will use commercially reasonable efforts to make its Service available with an Annual Uptime Percentage (defined below) of at least 99.9% during the Service Year. In the event Vendor does not meet the Annual Uptime Percentage commitment, Customer will be eligible to receive a Service Credit as described below.

2. Definitions:

2.1.“Service Year” is the preceding 365 days from the date of an SLA claim.

2.2.“Annual Uptime Percentage” is calculated by subtracting from 100% the percentage of 5 minute periods during the Service Year in which the Service was not available.  If you have been using the Service for less than 365 days, your Service Year is still the preceding 365 days but any days prior to your use of the Service will be deemed to have had 100% availability. Any downtime occurring prior to a successful Service Credit claim cannot be used for future claims. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Service SLA Exclusion (defined below).

2.3.“Unavailable” means that all of Customer’s running instances have no external connectivity during a five minute period and Customer is unable to launch replacement instances.

2.4.The “Eligible Credit Period” is a single month, and refers to the monthly billing cycle in which the most recent Unavailable event included in the SLA claim occurred.

2.5.A “Service Credit” is a dollar credit, calculated as set forth below, that Vendor may credit back to Customer.

3. Service Commitments and Service Credits

If the Annual Uptime Percentage for Customer drops below 99.9% for the Service Year, it is eligible to receive a Service Credit equal to 10% of their bill for the Eligible Credit Period. To file a claim, Customer does not have to wait 365 days from the day they started using the Service or 365 days from their last successful claim. A customer can file a claim any time their Annual Uptime Percentage over the trailing 365 days drops below 99.9%.

Vendor will apply any Service Credits only against future Service payments otherwise due from Customer; provided that, Service Credits shall not entitle you to any refund or other payment from Vendor. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD). Service Credits may not be transferred or applied to any other account. Unless otherwise provided in this Agreement, your sole and exclusive remedy for any unavailability or non-performance of the Service or other failure by us to provide the Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of your use of the Service.

4.    Credit Request and Payment Procedures

To receive a Service Credit, Customer must submit a request by sending an e-mail message to sales@checkbox.com.  To be eligible, the credit request must (i) include Customer’s subdomain for Customer’s account ; (ii) include, in the body of the e-mail, the dates and times of each incident of Unavailable that Customer claims to have experienced downtime, including instance ids of the instances that were running and affected during the time of each incident; (iii) include Customer’s server request logs that document the errors and corroborate the claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks); and (iv) be received by Vendor within thirty (30) business days of the last reported incident in the SLA claim. If the Annual Uptime Percentage of such request is confirmed by Vendor and is less than 99.9% for the Service Year, then Vendor will issue the Service Credit to Customer within one billing cycle following the month in which the request occurred. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit.

5.    Vendor SLA Exclusions

The Service commitment does not apply to any unavailability, suspension or termination of the web portal, or any other Vendor performance issues: (i) that result from a suspension due to non-payment or breach of this Agreement; (ii) caused by factors outside of Vendor’s reasonable control, including any force majeure event (as described in the Agreement) or Internet access or related problems beyond the demarcation point of Vendor; (iii) that result from any actions or inactions of Customer or any third party; (iv) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Vendor’s direct control); (v) maintenance and system upgrades, or (vi) Customer’s misuse of the Services (collectively, the “Vendor SLA Exclusions”). If availability is impacted by factors other than those explicitly listed in this Agreement, Vendor may issue a Service Credit considering such factors in Vendor’s sole discretion.