Partner Terms of Service
Exhibit B: Platform Availability
1. Definitions
Unless otherwise defined herein, capitalized terms shall have the meanings set forth below. Capitalized terms used but not defined herein have the meanings given to them in the Agreement.
“Affected Services” means the specific subscription(s), End-User account(s), or other unit(s) of the Services that experience an Outage.
“Annual Wholesale Cost” means the aggregate Wholesale Cost (as defined in the applicable Order Form and Fee Schedule) actually invoiced by Gigs for all Services rendered to Partner during any rolling twelve (12)-month period.
“Gigs Platform Status Page” is the website where Gigs provides availability reporting concerning the Gigs Platform Services, located at https://status.gigs.com/.
“Maintenance” means Gig’s maintenance of the Gigs Platform Services conducted in routine fashion or reasonable emergency maintenance.
“Monthly Uptime Percentage” means the number of minutes the Gigs Platform Services are accessible and not subject to an Outage during a calendar month divided by the total number of minutes in that calendar month.
“Outage” means an unplanned interruption or material degradation of the Gigs Platform Services resulting in the inability to access or use core functionality of the Gigs Platform Services, but excluding unavailability to the extent caused by (i) Partner’s use of the Gigs Platform Service other than as authorized in the Agreement or Documentation, (ii) Force Majeure Events or other factors outside of Gigs’s reasonable control, (iii) Partner’s infrastructure, or (iv) Maintenance.
“Service Credit” means, where eligible, a credit issued by Gigs equal to the applicable percentage (set forth in the table in Section 3(b) below) of the Wholesale Cost (as defined in the applicable Order Form and Fee Schedule) actually invoiced for the Territory where the failure of Platform Availability occurs.
“Service Credit Cap” means fifty percent (50 %) of the Annual Wholesale Cost.
2. Gigs Service Levels
Platform Availability. Gigs shall use commercially reasonable efforts, consistent with industry standards for similar services, to provide the Gigs Platform Services at or above a targeted Monthly Uptime Percentage of 99.9% (“Platform Availability”). Gigs will provide availability reporting and updates via the Gigs Platform Status Page, including for example with respect to Monthly Uptime Percentages, Maintenance, and Outages. Partner is responsible to sign up for notifications from the Gigs Platform Status Page prior to launch of the Services. For clarity, Platform Availability applies solely to the Gigs Platform Services and does not include the availability or performance of Third-Party Connectivity Providers, carrier networks, end-user devices, or external internet infrastructure.
Maintenance. Gigs will use commercially reasonable efforts to provide advance notice of planned Maintenance through the Gigs Platform Status Page. Planned Maintenance windows will typically not exceed one (1) hour per instance and three (3) instances per calendar quarter. Notwithstanding the foregoing, Gigs may conduct additional or extended Maintenance if required for operational or security reasons, and where reasonably practical will notify Partner in advance through the Gigs Platform Status Page.
3. Service Credits
Eligibility. Beginning three (3) months after the Effective Date, upon Gigs’s failure to meet Platform Availability commitment during any given month (“Affected Month”) for two (2) or more consecutive months, Partner shall be entitled to request a Service Credit for the Affected Month(s) as set forth in this Section 3. Partner must submit any claim for a Service Credit within thirty (30) days after the end of the relevant Affected Month, accompanied by reasonable supporting documentation.
Calculation. The amount of the Service Credit for each Affected Month shall equal the percentage set forth in the table below multiplied by the Wholesale Cost attributable solely to the Affected Services for that same period. When an Outage spans only a portion of a calendar month, the Wholesale Cost used for the calculation shall be prorated based on the number of minutes during which the Outage occurred relative to the total minutes in that month. Service Credits are non-cumulative and shall not be aggregated across separate and unrelated Outages or Affected Services. For avoidance of doubt, each Outage gives rise to at most one (1) Service Credit with respect to the specific Affected Services impacted by that Outage. The total Service Credit depends on actual subscription volumes and the actual Monthly Uptime Percentage achieved during the period in question.
Monthly Uptime Percentage
Service Credit
(% of Monthly Wholesale Cost)
99% ≤ Uptime < 99.9%
2%
97% ≤ Uptime < 99%
5%
95% ≤ Uptime < 97%
15%
Uptime < 95%
25%
Application and Cap. Service Credits will be applied as a monetary credit against the next invoice issued by Gigs following validation of the applicable claim, provided Partner’s account is then current. Under no circumstances shall the total Service Credits applied in any rolling twelve (12)-month period exceed the Service Credit Cap.
Exclusive Remedy. Service Credits constitute liquidated damages and are Partner’s sole and exclusive remedy, and Gigs’s entire liability, for any failure to meet the Platform Availability commitment or for any Outage or degradation of the Services, notwithstanding any other term of the Agreement or any theory of law or equity.
Illustrative Example. If (a) the Wholesale Cost for all Partner subscriptions in Month 1 is $100, but only $40 relates to the Affected Services, and the Monthly Uptime Percentage is 99.5%, then the Service Credit equals $0.80 (2% × $40). If (b) in Month 2 the Wholesale Cost for all Partner subscriptions is $200, of which $50 relates to the Affected Services, and the Monthly Uptime Percentage is 87%, the Service Credit equals $12.50 (25% × $50). The cumulative Service Credits awarded during that twelve-month period will be tracked against the Service Credit Cap.