Trimble offers the following service level agreement for each of its Sefaira software-as-a-service offerings (“Service“):
1. Target Availability. Trimble will use commercially reasonable efforts to make the Service available with an uptime of 98.0% of each calendar month (“Target Availability“).
2. Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in the agreement or terms under which the Service is made available or applicable Service documentation; (b) general Internet problems, force majeure events or other factors outside of Trimble’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Trimble’s Scheduled Maintenance or reasonable emergency maintenance. “Scheduled Maintenance” means Trimble’s scheduled routine maintenance for which Trimble notifies Customer at least three (3) days in advance. Scheduled Maintenance will not exceed twenty (20) hours per month and Trimble will use commercially reasonable efforts to perform Scheduled Maintenance only between the hours of 8:00 PM and 11:00 PM Pacific Time on Tuesdays and Saturdays.
3. Service Credits. If there is a verified failure of the Service to meet Target Availability in a particular month and Customer makes a request for service credit within thirty (30) days after the end of such month, Customer will be entitled to a credit based on the monthly fees due for the affected Service in such month (“Service Credit“). The Service Credit will be calculated as follows:
|Uptime||Service Credit (% of monthly fees)|
|97.00% — 97.99%||5%|
|96.00% — 96.99%||10%|
|95.00% — 95.99%||15%|
Trimble will apply each Service Credit to Customer’s next invoice, provided that Customer’s account is fully paid up, without any outstanding payment issues or disputes. Customer will not receive any refunds for any unused Service Credits. For the avoidance of doubt, no Service Credit in any month will exceed 20% of the monthly fees due.
4. Exclusive Remedies. Service Credits constitute liquidated damages and are not a penalty. Service Credits are Customer’s sole and exclusive remedy, and Trimble’s sole and exclusive liability, for Trimble’s failure to meet the Target Availability.