Blink OnDemand Crisis PR™
Effective Date: January 1, 2018
This Website is offered and available to users who are 18 years of age or older. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company. If you are using this Website on behalf of a corporation or other business entity (“Your Company”), you, as the primary administrative user (the “Primary User”), represent that you are an authorized representative of Your Company who is able to enter into a binding contract on behalf of Your Company. In such a case the terms “you” and “your” as used herein refer to Your Company. If you do not meet these requirements, you must not access or use the Website or the Services.
- PRODUCT DESCRIPTION. Blink OnDemand Crisis PR is a proprietary web-based software-as-a-service product of the Company that provides you with instructions and customizable documents in order to prepare a customized crisis PR plan for Your Company (including all content and materials available through such product, “Blink OnDemand” or the “Services”).
- Access to BLINK ONDEMAND
- Subscriptions. You must purchase a one-year subscription (the “Subscription”) in order to use Blink OnDemand. For subscribers, the Company will provide access to Blink OnDemand 24 hours a day, 7 days a week, except for: (a) Maintenance (as defined in Section 8 (Support; Maintenance)) or (b) any unavailability caused by a Force Majeure Event as defined in Section 13.7 (Force Majeure). You may access and use Blink OnDemand during the term of your Subscription (the “Subscription Term”) solely for Your Company’s internal business purposes. Use of Blink OnDemand is limited to the Primary User and Your Company’s employees and agents acting on Your Company’s behalf (such persons, together with the Primary User, are referred to collectively as the “Permitted Users”) up to the number of licensed Permitted Users purchased for the Subscription at the time you register for Blink OnDemand on the Website (the “Registration Form”). You are responsible for compliance by all Permitted Users with the terms and conditions of this Agreement. All use of Blink OnDemand must be in accordance with (i) the terms and conditions of this Agreement and (ii) the user guides, online help resources, release notes, training materials and other documentation made available by the Company to you regarding the use or operation of Blink OnDemand (collectively, the “Documentation”). You will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Access to Blink OnDemand is granted specifically to you and the Permitted Users and may not be shared with others. You are solely responsible for any and all actions taken using your accounts, user IDs and passwords, and will immediately notify the Company if any Permitted User who has access to a user ID no longer works for you.
- General Restrictions. You will not (and will not allow any Permitted Users or any third party to): (a) rent, lease, copy, provide access to or sublicense Blink OnDemand to a third party; (b) use Blink OnDemand other than as permitted herein; (c) incorporate Blink OnDemand (or any part thereof) into another product or service or otherwise use Blink OnDemand (or any part thereof) to provide any product or service to a third party in any manner except as expressly permitted herein; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to Blink OnDemand; (e) modify or create a derivative work of Blink OnDemand (or any portion thereof); (f) remove or obscure any proprietary or other notices contained in Blink OnDemand including any reports or data obtained from Blink OnDemand; (g) attempt to interfere with the proper working of Blink OnDemand, compromise Blink OnDemand’s integrity or security, circumvent any access or copy restrictions of Blink OnDemand or decipher any transmissions to or from the servers running Blink OnDemand; (h) access Blink OnDemand or any content or data therein through any technology or means other than those provided or authorized by Blink OnDemand; or (i) publicly disseminate information regarding the performance of Blink OnDemand.
- Acceptable Use Policy. You agree not to engage in any of the following prohibited activities in connection with Blink OnDemand: (a) transmitting spam, junk texts, or other unsolicited communications; (b) uploading invalid data, viruses, worms, or other software agents through Blink OnDemand; (c) collecting or harvesting any personally identifiable information, including account names, from other user’s Blink OnDemand accounts; or (d) impersonating another person, misrepresenting your affiliation with a person or entity, conducting fraud or hiding or attempting to hide your identity.
- Your DATA
- Definition. “Your Data” means: profile information, phone numbers, email addresses, and other internal business information submitted by you to Blink OnDemand. Your Data does not include the Template Materials (as defined in Section 4.2 (Template Materials)).
- Ownership of Your Data. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to Your Data as provided to the Company.
- Security. The Company agrees to use commercially reasonable technical and organizational measures designed to secure its systems from unauthorized access, use, alteration or disclosure. However, you are solely responsible for the loss of Your Data, including without limitation all losses resulting from third party attacks. Third party attacks include, without limitation, hacks, intrusions, distributed denial-of-service attacks or any other third party actions intended to cause harm to or disrupt the Services. You hereby release the Company and its third party suppliers from any and all liability arising from the loss of Your Data. The Company and its third party suppliers are not responsible to you or any other person or entity for any unauthorized access to or use of Your Data unless the access or use results from the Company’s failure to meet its obligations under this Section 3.4.
- Storage of Your Data. During the Subscription Term, the Company will not intentionally delete Your Data from Blink OnDemand. The Company expressly disclaims all other obligations with respect to storage of Your Data.
- Obligations. You will ensure that your use of Blink OnDemand and Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations, including, without limitation, all laws relating to telecommunications and electronic communications (“Laws”). Without limiting the foregoing, you represent and warrant that: (a) you have obtained all necessary rights and permissions to provide all Your Data to the Company and to grant the rights granted to the Company in this Agreement and (b) the Your Data and the collection and use thereof in connection with Blink OnDemand does not violate any Laws (including without limitation those relating to export control and telephonic or electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 3.4 (Security), the Company takes no responsibility and assumes no liability for any Your Data, and you are solely responsible for Your Data and the consequences of disclosing Your Data to the Company.
- US Based Services. The Company is based in the state of Illinois in the United States. We provide this Website and the Services for use only by persons located in the United States. We make no claims that the Website or the Services are accessible or appropriate outside of the United States. Access to the Website or the Services may not be legal by certain persons or in certain countries. If you or Permitted Users access the Website or the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
- Indemnification by You. You will indemnify, defend and hold harmless the Company from and against any and all claims, costs, damages, fines, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to Your Data (including without limitation any breach of your obligations and warranties in Section 3.6 (Obligations)). This indemnification obligation is subject to you receiving from the Company: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of the Company at your expense.
- Your Data Upon Termination. Provided that you have paid all amounts owed to the Company hereunder, within 30 days of the end of your Subscription Term or upon the earlier cancellation of your Subscription, the Company will send you an HTML version (viewable but not editable) of all of Your Data and your customized Template Materials stored in the Services at the time of termination.
- The Company Technology. This is a services agreement for access to and use of Blink OnDemand. You acknowledge that you are obtaining a limited right to use Blink OnDemand and that no ownership rights are being conveyed to you under this Agreement. You agree that the Company or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to Blink OnDemand, the Website, any and all related and underlying technology and the Documentation, and any modifications or derivative works thereof (collectively, the “Company Technology”). Further, you acknowledge that Blink OnDemand is offered as an on-line, hosted solution, and that you have no right to obtain a copy of Blink OnDemand itself. You acknowledge that Blink OnDemand is an on-line, software as a service-based product, and that in order to provide improved customer experience the Company may make changes to Blink OnDemand from time to time.
- Template Materials. The Company owns all right, title and interest (including all copyright and other intellectual property rights) in and to all materials, documents and templates available through the Services (the “Template Materials”). Your right to use the Template Materials, including those that you customize through the Services, only applies during your Subscription Term and will automatically terminate at the end of your Subscription Term or the earlier cancellation of your Subscription.
- Feedback. If you elect to provide any suggestions, comments, improvements, ideas or other feedback to the Company (collectively, “Feedback”), you hereby grant the Company the right to freely use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
- Subscription Term, FEES & PAYMENT
- Subscription Term and Renewals. Each Subscription Term will automatically renew for an additional twelve-month period unless a party gives the other party written notice of termination at least ten (10) days prior to expiration of the then-current Subscription Term. If no service start date is specified on the applicable Registration Form, the date of your Subscription Term will be when you first obtain access to Blink OnDemand.
- Fees and Payment. All fees (“Services Fees”) are as set forth in the Registration Form. The Company charges a standard fee for a Subscription for one user to Blink OnDemand, with additional fees for additional Permitted Users. You will be permitted to elect your payment method and frequency in the Registration Form. If you elect to pay on a monthly basis, Service Fees are payable monthly in advance upon commencement of each month of the Subscription Term. The Company’s fees are exclusive of all taxes and you are required to pay any sales, use, GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of the Company. Any late payments are subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. The Company reserves the right to change the Services Fees and to institute new charges at the renewal of any Subscription Term, upon prior notice to you (which may be sent by email to the address you have most recently provided). If you have credit card information on file in your Registration Form, your credit card will automatically be charged monthly (if you have elected to be billed monthly) and/or at the time of automatic renewal of your Subscription Term.
- Suspension of Service. If your account is overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), the Company reserves the right to suspend your access to the Services without liability to you until such amounts are paid in full. The Company may also suspend your access if, in its reasonable discretion, the Company deems such suspension necessary as a result of your breach of the express obligations under Sections 2.2 (General Restrictions) or 2.3 (Acceptable Use Policy), to prevent harm to other customers or to preserve the security or integrity of the Services. Unless this Agreement has been terminated, the Company will cooperate with you to restore access to the Services once the condition requiring suspension has been resolved by you.
- Refunds; Cancellation. Services Fees are not refunded or prorated if your Subscription is terminated before the Subscription Term ends (except as described in Sections 6.3 (Effect of Termination) and 10 (IP Indemnification)). If you cancel the then-current Subscription prior to fulfilling the annual term, you will be required to pay the outstanding monthly payments remaining on the annual term, if any.
- TERM AND TERMINATION
- Term. This Agreement is effective as of date you click the acceptance box to agree to this Agreement and expires on the date of expiration or termination of the Subscription Term.
- Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after receipt of written notice of the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). In addition, the Company may terminate this Agreement if you fail to timely pay fees due under this Agreement and such failure continues for 5 business days after your receipt of written notice of such failure from the Company.
- Effect of Termination. Upon any expiration or termination of this Agreement: (a) you will immediately cease any and all use of and access to the Services (including any and all related the Company Technology) and delete any the Company passwords or access codes and any other the Company Confidential Information (as defined below in Section 11 (Confidential Information)) in your possession, (b) except as provided in Section 3.9 (Your Data Upon Termination), you will have no further access to any of Your Data in the Services and the Company may delete any such data in its possession at any time after the Company satisfies its obligations under Section 3.9, (c) you will have no further access to any of the Template Materials and (d) unless otherwise expressly stated herein, you shall immediately pay the Company any amounts payable or accrued hereunder and not yet paid to the Company (including any payments due on the remainder of your then-current Subscription Term, which shall remain payable by you unless you terminate this Agreement pursuant to Section 6.2 (Termination for Cause)). If you terminate this Agreement under Section 6.2 (Termination for Cause), the Company shall refund the unused portion of any Services Fees prepaid by you for the then-current Subscription Term. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
- Survival. The following Sections shall survive any expiration or termination of this Agreement: 2.2 (General Restrictions), 3.2 (Ownership of Your Data), 3.7 (Indemnification by You), 4 (Ownership), 5.2 (Fees and Payment), 5.4 (Refunds, Cancellation), 6 (Term and Termination), 7 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (IP Indemnification), 11 (Confidential Information), and 13 (General Provisions).
- Warranty Disclaimer. Blink OnDemand and the website ARE PROVIDED “AS IS”. NEITHER THE COMPANY NOR ITS SUPPLIERS MAKES ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST POSSIBLE PERIOD. the Company SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF THE REASONABLE CONTROL OF the Company. the Company does not warrant that blink ondemand or the website will meet your expectations and is not responsible for any decisions or actionS taken (or not taken) by You or permitted users based upon use or implementation of Blink OnDemand (INCLUDING THE TEMPLATE MATERIALS) OR THE WEBSITE.
- Support; Maintenance. The Services Fees include standard support by email (help@BlinkCrisisPR.com). The Company will generally respond to support-related emails within 24-48 hours of receipt (or the next succeeding business day if the response period falls on a weekend or holiday). The Company will provide updates, bug fixes or new releases to Blink OnDemand from time to time. All such updates, bug fixes or new releases are included in the Services Fees, unless stated otherwise on the Registration Form. When we apply updates, upgrades, bug fixes, patches or make other maintenance changes to the Services (“Maintenance”), we will use reasonable efforts to provide you with prior notice if it is scheduled Maintenance. You agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about.
- Limitation of Remedies and Damages
- Consequential Damages Waiver and Liability Cap. Neither party nor ITS SUPPLIERS WILL BE LIABLE FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. the Company’s AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO THE COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
- The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections 2.2 (General Restrictions), 2.3 (Acceptable Use Policy) and Section 11 (Confidential Information).
- Allocation of Risk. Each party acknowledges that the foregoing limitations are an essential element of the Agreement and a reasonable allocation of risk between the parties and that in the absence of such limitations the pricing and other terms set forth in this Agreement would be substantially different.
- IP INDEMNIFICATION. The Company will defend you from and against any claim by a third party alleging that Blink OnDemand when used as authorized under this Agreement (but excluding any of Your Data) infringes a U.S. patent, U.S. copyright or U.S. trademark and will indemnify you from and against any damages and costs awarded against you or agreed in settlement by the Company (including reasonable attorneys’ fees) resulting from such claim, provided that the Company receives from you: (a) prompt written notice of such claim (but in any event notice in sufficient time for the Company to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of you. If any portion of Blink OnDemand becomes, or in the Company’s opinion is likely to become, the subject of a claim of infringement or misappropriation or if the Company determines such actions are reasonably necessary to avoid material liability, the Company may, at the Company’s option: (i) procure for you the right to continue using the affected portion of Blink OnDemand; (ii) replace Blink OnDemand or the affected portion thereof with substantially functionally similar products or services; (iii) modify Blink OnDemand so that it becomes non-infringing; or if such options are commercially unreasonable; and (iv) terminate this Agreement and refund the unused portion of any Services Fees prepaid by you for the then-current Subscription Term, and upon such termination, you will immediately cease all use of Blink OnDemand. Notwithstanding anything to the contrary in this Agreement, the Company has no obligation under this Section or otherwise for any infringement or misappropriation claim if you settle or make any admissions regarding a claim without the Company’s prior written consent or for claims arising as a result of: (A) any use of Blink OnDemand not in accordance with this Agreement; (B) any use of Blink OnDemand in combination with other services, products, processes, equipment or software not supplied by the Company; (C) any modification of Blink OnDemand by any person other than the Company; or (D) any or Your Data contained therein. THIS SECTION 10 STATES YOUR SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF THE COMPANY, OR ANY OF ITS SUPPLIERS, OFFICERS, EMPLOYEES, OWNERS, MEMBERS, CONTRACTORS OR REPRESENTATIVES OF THE FOREGOING, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Company Technology, Template Materials and performance information relating to Blink OnDemand are Confidential Information of the Company without any marking or further designation. Your Data is Confidential Information of you. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Each Receiving Party may disclose Confidential Information of the Disclosing Party on a need-to-know basis to its contractors who are subject to confidentiality agreements required them to maintain such information in confidence and use it only to facilitate the performance of their services. The Receiving Party’s nondisclosure obligation does not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may disclose Confidential Information if so required pursuant to a regulation, law, court or governmental order or legal process, but only to the minimum extent required to comply with such regulation, law, court or governmental order or legal process and with advance notice to the Disclosing Party. Each party shall be permitted to disclose the existence of this Agreement and the relationship of the parties. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy and, therefore, upon any such disclosure by the Receiving Party the Disclosing Party is entitled to appropriate equitable relief in addition to any other remedies it might have at law.
- SERVICE LEVEL AGREEMENT. The Service Level Agreement (“SLA”) for the Services is set forth in Exhibit A attached hereto. The SLA sets forth your sole remedies for availability or quality of the Services including any failure to meet any guaranty set forth in the SLA.
- General Provisions
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 is null and void.
- Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
- Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Illinois and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state courts located in Cook County, Illinois or the United States District Court for the Northern District of Illinois, and both parties hereby submit to the personal jurisdiction of such courts.
- Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
- Changes to this Agreement. The Company may change any part of this Agreement at any time. The Company will provide you with notice of material changes (which notice may be made by the Company through the posting of the material changes on the Website or by other means as permitted by this Agreement). We may, but are not required to, provide you with notice of non-material changes. Your remedy if you do not agree to the changes we have made to this Agreement is to discontinue use of the Services.
- Force Majeure. Neither party is liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or data services, or refusal of a license by a government agency (collectively, a “Force Majeure Event”).
- Publicity. The Company may include Your Company’s name and logo in its customer lists and on its website.
- No Third Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners or customers or upon any other person or entity except as expressly stated herein.
- Statistical Information. The Company may anonymously compile statistical information related to the performance of the Services for purposes of improving the Services, provided that such information does not identify Your Data or include Your Company’s name.
- Contact Information; Email Communications. This Website is operated by The Kennedy Organization, LLC, 210 East Pearson Street, Suite 4A, Chicago, IL 60611, Email: admin@BlinkCrisisPR.com and Phone: (847) 423-2443. You agree that the Company may contact you for Services-related reasons through the contact information that you provide through the Services, including e-mail. You agree to electronic invoice delivery via email and confirm your ability to access your invoice online. The Company may also use your email address to tell you about Company products and services unless you have asked not to receive marketing emails from the Company.
- Company Email Address. All feedback, comments and other communications relating to the Website or the Services should be directed to: admin@BlinkCrisisPR.com.
- Updating Your Information. You agree to provide accurate, current and complete information about yourself as prompted by the registration process. In order to ensure that you receive uninterrupted service, you must promptly inform the Company of any changes in the following:
- email address;
- number, expiration date and security code of any credit card used in connection with the Services;
- billing address;
- work phone number;
- mobile phone number; and
- breaches of security, such as loss, theft, or unauthorized disclosure or use of an ID or password.
Until the Company is notified by e-mail of a change in any of the above items (including a breach in security), you remain liable for any unauthorized use.
- Electronic Documents. You agree to the use of electronic documents and records in connection with your registration for the Services and all future documents and records in connection with the Services.
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) is a policy governing the use of the Services.
The Company will use commercially reasonable efforts to make the Services available with the Monthly Uptime Percentage (as defined below) during each calendar month of the Subscription Term (the “Service Commitment”). In the event that the Company does not meet the Monthly Uptime Percentage, you may be eligible to receive a Service Credit as described below.
- “Monthly Availability” means the total minutes during the applicable calendar month, minus minutes of downtime for the Services attributable to SLA Exclusions, minus Outage Minutes.
- “Monthly Uptime Percentage” is 98.0%.
- “Outage Minutes” means the minutes during the applicable calendar month during which the Services experienced an outage, minus minutes of downtime attributable to SLA Exclusions.
- A “Service Credit” is a dollar credit, calculated as set forth below, that the Company may credit back to you.
- “SLA Exclusions” is defined below under the heading “SLA Exclusions”.
Compliance with the Monthly Uptime Percentage will be measured on a calendar month basis. Such compliance will be calculated by dividing (a) Monthly Availability by (b) the total number of actual minutes in such month minus minutes of downtime attributable to SLA Exclusions, and then multiplying that amount by 100. If this calculation is less than the Monthly Uptime Percentage, you may be entitled to a Service Credit as described in this SLA.
If the Company misses the Monthly Uptime Percentage in a given calendar month, Service Credits are calculated by dividing the number of Outage Minutes by the total number of minutes in the applicable calendar month minus minutes of downtime attributable to SLA Exclusions, and multiplying that percentage by the total charges paid by you for the Services on a pro-rated basis for such calendar month.
The Company will apply any Service Credits only against future payments otherwise due from you. However, at the Company’s discretion, the Company may issue the Service Credit to the credit card you used to pay for the billing cycle in which the error occurred. Service Credits will not entitle you to any refund or other payment from the Company. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly calendar period is greater than one dollar ($1 USD). Service Credits may not be transferred or applied to any other account. Service Credits in any calendar month may not exceed the total charges paid by you for the Services on a pro-rated basis for such calendar month.
Your sole and exclusive remedy for any unavailability, non-performance or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
Credit Request and Payment Procedures
To receive a Service Credit, you must submit a claim by emailing the Company at admin@BlinkCrisisPR. To be eligible, the credit request must be received by the Company within five (5) days after the end of the applicable calendar month in which the Monthly Uptime Percentage was missed, and must include:
- the words “SLA Credit Request” in the subject line;
- the dates and times of the Outage Minutes; and
- your request logs that document the errors and corroborate your claimed Outage Minutes (any confidential or sensitive information in these logs should be removed or replaced with asterisks).
If the Company confirms that it missed the Monthly Uptime Percentage for the applicable calendar month of such request, then the Company will issue the Service Credit to you within thirty (30) days following the month in which your request is confirmed by the Company. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.
The Service Commitment does not apply to any unavailability, suspension or termination of the Services or any other Services performance issues: (a) caused by scheduled Maintenance or maintenance to the Company’s hardware or software scheduled by the Company’s server host; (b) caused by factors outside of the Company’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the Services; (c) that result from any actions or inactions of you, the Permitted Users or any third party; (d) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within the Company’s direct control); (e) arising from the Company’s suspension and/or termination of your right to use the Services in accordance with this Agreement; or (f) denial of service or other malicious attacks (collectively, the “SLA Exclusions”).
4815-6982-5621, v. 1