TERMS AND CONDITIONS
1. These Terms and Conditions are incorporated by reference into an Order Form that has been entered into between Ravin and Subscriber. These Terms and Conditions and the Order Form are collectively referred to as this “Agreement.”
DEFINITIONS. Any capitalized terms used in this Agreement that are not otherwise defined in this Agreement shall have the meaning as set forth below:
1.1 “Affiliate” shall mean any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized Users” shall mean the employees or agents of Subscriber, as well as contractors performing services for Subscriber, who are authorized to access and use the Subscription Service.
1.3 “Documentation” shall mean the Ravin product documentation relating to the operation and use of the Subscription Service, including technical program documentation, user manuals, operating instructions and release notes, as updated from time to time by Ravin.
1.4 “On Premises Software” shall mean any software that Ravin provides to Subscriber for use in operation with the Subscription Service, including mobile applications.
1.5 “Order Form” shall mean an ordering document that represents the purchase of the Subscription Service and other services executed by Subscriber and Ravin, and that references and incorporates by reference this Agreement.
1.6 “Professional Services” shall mean any implementation, training, consulting, data migration, conversion, integration or other services provided by Ravin to Subscriber, as set forth or referenced in an Order Form.
1.7 “Subscriber Data” shall mean electronic data about Subscriber’s use of the Subscription Service that is collected by the Subscription Service or otherwise transferred by or for Subscriber or the Authorized Users and processed in the Subscription Service.
1.8 “Subscription Service” shall mean the web-based software-as-a-service offering of Ravin that provides vehicle inspection services, and shall include On Premises Software, as the context requires, but does not include Equipment (defined in Section 5.2 hereof).
1.9 “Support Services” shall mean the provision of Updates as set forth in Section 3.1 hereof and technical support as set forth on Attachment 1, attached hereto.
1.10 “Term” shall have the meaning ascribed thereto in Section 8.1 hereof.
2. SUBSCRIPTION SERVICE.
2.1 Subject to the terms of this Agreement, Ravin will use commercially reasonable efforts to provide Subscriber with the Subscription Service substantially in accordance with the Documentation.
2.2 Subject to compliance by Subscriber with the terms of this Agreement, Ravin authorizes Subscriber, through its Authorized Users, to access and use the Subscription Service during the Term for its internal business purposes in accordance with the Documentation. This authorization is non-exclusive and non-transferrable.
2.3 Authorization to access the Subscription Service is granted solely to Subscriber and the Authorized Users.
2.4 Although Ravin has no obligation to monitor Subscriber’s use of the Subscription Service, Ravin may do so and may prohibit any use of the Subscription Service it believes may be (or alleged to be) in violation of this Agreement.
2.5 Use of On Premise Software is limited to use in conjunction with use and access to the Subscription Service.
2.6 No rights or licenses are granted by Ravin except as expressly set forth herein.
3. SUPPORT SERVICES.
3.1 As part of Support Services, Ravin may, from time to time, develop and implement into the Subscription Service enhancements, upgrades, updates, improvements, modifications, extensions and other changes (“Updates”). Updates implemented into the Subscription Service shall be deemed part of the Subscription Service. Subscriber hereby authorizes Ravin to implement such Updates.
3.2 Subject to the terms hereof, Ravin will provide Subscriber with reasonable technical support for the Subscription Service in accordance with the terms set forth on Attachment 1, attached hereto.
4. PROFESSIONAL SERVICES.
4.1 An Order Form for Professional Services shall specify the specific Professional Services ordered, any accompanying specifications and applicable pricing.
5. RESTRICTIONS AND RESPONSIBILITIES.
5.1 Subscriber shall not (and shall not permit others to) do the following with respect to the Subscription Service: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share, operate as a service bureau, or otherwise make any of it available for access by third parties; (ii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Service; (iii) disassemble, reverse engineer, or decompile it; (iv) copy, create derivative works based on or otherwise modify it, (v) remove or modify a copyright, trademark, logo or other proprietary rights notice or brand labeling in it; (vi) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (vii) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs or otherwise engage, in a malicious act or disrupt its security, integrity or operation; (viii) publish or release any benchmarking or performance data applicable to the Subscription Service; or (ix) access or disable any Ravin or third party data, software or network. Subscriber represents, covenants, and warrants that Subscriber will use the Subscription Service only in compliance with the Documentation and all applicable laws and regulations. Subscriber hereby agrees to indemnify and hold harmless Ravin against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing restrictions.
5.2 Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to utilize, connect to, access or otherwise use the Subscription Service, including, without limitation, cameras, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber’s account or the Equipment with or without Subscriber’s knowledge or consent.
5.3 Upon a request from Subscriber, Ravin may agree to coordinate with third-party vendors for the purchase, installation and maintenance of Equipment required for operation of the Subscription Service. Subscriber will sign off on the proposed configuration and pricing, and will pay to Ravin the required amount as invoiced by Ravin. Any cancellation of an Equipment order shall be subject to the terms offered by the applicable third-party vendor. All warranty and maintenance terms applicable to the Equipment and associated labor will be as offered by the third-party vendors. Ravin does not warrant or take any responsibility for the Equipment, associated labor, or maintenance services provided by the third-party vendors.
5.4 Subscriber shall not: (i) use or permit the use of the Subscription Service for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law; (ii) transmit Subscriber Data using the Subscription Service that infringes upon or misappropriates the intellectual property or privacy rights of any third party; (iii) perform any load testing of the Subscription Service or attempt to probe, scan or test the vulnerability of the Subscription Service without proper authorization; or (iv) log into a server or account that Subscriber and/or not authorized to access.
5.5 Subscriber is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of this Agreement. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Subscriber Data generated, uploaded and transmitted by Subscriber and Authorized Users. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service and notify Ravin immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
5.6 Subscriber acknowledges that the successful and timely provision of the Subscription Service shall require the good faith cooperation of Subscriber. Ravin shall not be liable for any failure to provide the Subscription Service that arises from Subscriber’s failure to cooperate in good faith with Ravin.
6. CONFIDENTIALITY; PROPRIETARY RIGHTS.
6.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Ravin includes non-public information regarding features, functionality and performance of the Subscription Service. Proprietary Information of Subscriber includes the Subscriber Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Subscription Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without violation of this Agreement, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law, as advised by the Receiving Party’s legal counsel.
6.2 Ravin shall own and retain all right, title and interest in and to (a) the Subscription Service and all Updates thereto, (b) any software, applications, inventions or other technology developed in connection with the performance by Ravin of Professional Services or Support Services, and (c) all intellectual property rights related to any of the foregoing.
6.3 Subscriber shall own all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to Ravin a worldwide, non-exclusive, fully paid-up license to use the Subscriber Data in any manner reasonably necessary to perform the Subscription Service, Professional Services and Support Services. Subscriber represents and warrants that Subscriber owns all right, title and interest in and to the Subscriber Data or has a license granting it the rights necessary to permit it to grant the foregoing license. Subscriber Data is retained by Ravin in accordance with the Ravin data retention policy, which Subscriber may obtain upon request. It is Subscriber’s responsibility to download those portions of the Subscriber Data that Subscriber wants to retain prior to permanent deletion by Ravin in accordance with Ravin data retention policy.
6.4 Ravin shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Service and related systems and technologies (including, without limitation, information concerning Subscriber Data and data derived therefrom), and Ravin will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Subscription Service and for other development, diagnostic and corrective purposes in connection with the Subscription Service and other Ravin offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
6.5 Subscriber acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Subscription Service provided by Subscriber to Ravin are non-confidential and Ravin (as well as any designee of Ravin) shall be entitled to the unrestricted use and dissemination of this information for any purpose, commercial or otherwise, without acknowledgment or compensation to Subscriber.
7. PAYMENT OF FEES.
7.1 Subscriber will pay Ravin the then applicable fees described in the Order Form for the Subscription Service and Professional Services in accordance with the terms therein (the “Fees”).
7.2 Fees for the Subscription Service will be calculated and invoiced in accordance with the terms of the Order Form, and may be charged in advance, in arrears, or a combination of both. Fees may be calculated based upon number of vehicle scans, or other criteria as set forth in the Order Form. Additionally, if Subscriber’s use of the Subscription Service exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Subscriber shall be billed for such excess usage and Subscriber agrees to pay the additional fees in the manner provided herein, and at the price set forth in the Order Form. Fees for Professional Services will be invoiced monthly, or as otherwise set forth in an Order Form. Ravin reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term specified in an Order Form or thencurrent renewal term, upon thirty (30) days prior notice to Subscriber (which may be sent by email). If Subscriber believes that Ravin has billed Subscriber incorrectly, Subscriber must contact Ravin no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Except for the foregoing adjustment or credit, all payments are final and non-refundable.
7.3 Subscriber acknowledges that the Fees are based on Subscriber’s access requirements as provided to Ravin by Subscriber. In the event Subscriber wishes to subsequently expand access to additional users, sites, devices, or Affiliates, as applicable, Subscriber may purchase additional subscriptions to the Subscription Service by executing separate Order Forms hereunder.
7.4 Ravin may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Ravin thirty (30) days after the mailing date of the invoice payable in full. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees, and may result in suspension or termination of the Subscription Service.
7.5 Subscriber shall be responsible for all taxes associated with Subscription Service, and other services provided under this Agreement, including but not limited to sales, use, excise, withholding, value-added (VAT) and similar taxes and all customs, duties or other governmental impositions, but excluding taxes calculated on Ravin’s net income. All prices quoted are net of any withholding taxes, VAT, sales or other taxes, and customs duties. All payments shall be made in U.S. dollars unless otherwise agreed by Ravin in writing. All payments are final.
8. TERM AND TERMINATION.
8.1 Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the Order Form (the “Initial Service Term”), and, unless otherwise provided in an Order Form, shall be automatically renewed for additional periods of once (1) year (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
8.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement, and does not cure such breach within the thirty (30) day notice period.
8.3 Upon termination or expiration of this Agreement, Subscriber shall cease to access the Subscription Service. Subscriber will pay in full for the Subscription Service up to and including the last day on which the Subscription Service is provided. Upon any termination, Ravin will make all then-current Subscriber Data available to Subscriber for electronic retrieval for a period of thirty (30) days, but thereafter Ravin may, but is not obligated to, delete stored Subscriber Data. Upon termination, Subscriber shall return and/or delete all On Premises Software and Documentation, and upon request from Ravin, Subscriber will certify in writing satisfaction of such obligation.
8.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. WARRANTY AND DISCLAIMER.
9.1 Ravin shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Service in a manner which minimizes errors and interruptions in the Subscription Service and shall perform the Professional Services and Support Services in a professional and workmanlike manner.
9.2 The Subscription Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Ravin or by third-party providers, or because of other causes beyond Ravin’s reasonable control, but Ravin shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
9.3 RAVIN DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SUBSCRIPTION SERVICE AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND RAVIN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.1 Ravin shall defend and hold Subscriber harmless from liability to third parties resulting from infringement by the Subscription Service of any United States patent or any copyright or misappropriation of any trade secret, provided Ravin is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Ravin will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to infringement claims arising from (i) a modification of the Subscription Service by any party other than Ravin; (ii) a combination of the Subscription Service with other software products, equipment, processes or materials not supplied by Ravin; or (iii) use of the Subscription Service not in accordance with this Agreement or the Documentation.
10.2 If, due to a claim of infringement, the Subscription Service is held by a court of competent jurisdiction to be or is believed by Ravin to be infringing, Ravin may, at its option and expense (a) replace or modify the Subscription Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Subscriber a license to continue using the Subscription Service, or (c) if neither of the foregoing is commercially practicable in Ravin’s judgment, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber a refund of any fees prepaid to Ravin and not used for the remainder of the Subscription Service.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, RAVIN AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OF THE SUBSCRIPTION SERVICE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR LOSS OF BUSINESS OR REVENUE; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR UNAUTHORIZED ACCESS TO THE SUBSCRIPTION SERVICE; (D) FOR ANY MATTER BEYOND RAVIN’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES RECEIVED BY RAVIN FOR THE SUBSCRIPTION SERVICE UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT RAVIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 Publicity. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of Subscribers and vendors in accordance with the other party’s standard guidelines.
12.2 Non-Solicitation. Subscriber acknowledges and agrees that Ravin has made a significant investment in recruiting, training and retaining its employees. Accordingly, Subscriber agrees that, during the Term of this Agreement and for a period of one year thereafter Subscriber will not directly or indirectly solicit any current or former employee or contractor of Ravin who is or becomes known to Subscriber in connection with this Agreement, provided that for former employees the one-year period shall begin from when they cease being employees of Ravin.
12.3 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.4 Amendment. No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties, unless otherwise provided for herein.
12.5 Assignment. This Agreement is not assignable, transferable or sublicensable by Subscriber except with Ravin’s prior written consent. Ravin may assign this Agreement to a purchaser of substantially all of the assets or equity of the business unit of Ravin responsible for the performance of this Agreement.
12.6 No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Subscriber does not have any authority of any kind to bind Ravin in any respect whatsoever.
12.7 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.8 Law and Jurisdiction. All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement shall be governed and construed by the law of Delaware, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against a party arising out of or related in any respect to this Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over New Castle County, State of Delaware. The parties hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Notwithstanding the foregoing, Ravin may seek equitable relief in any applicable jurisdiction in an action for protection of Ravin’s intellectual property. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement.
12.9 Force Majeure. Ravin shall not be responsible or liable for any loss, damage, delay or failure to act caused by war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, interruption to or absence of energy supplies, lock outs, strikes, other labor disputes, the failure of Ravin's suppliers or carriers to meet their contractual obligations, or, without limitation, any other cause beyond Ravin's reasonable control (“Force Majeure Event”).
12.10 No Export. Subscriber may not export or allow the export or re-export of the Subscription Service, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
12.11 U.S. Government Usage. As defined in FAR section 2.101, the Subscription Service and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
12.12 Data Backup. The Subscription Service will maintain certain data transferred for the purpose of the performance of the Subscription Service. Although Ravin performs regular routine backups of data, Subscriber is primarily responsible for all data that Subscriber has transferred (including Subscriber Data) or that relates to any activity you have undertaken using the Subscription Service. Subscriber agrees that Ravin shall have no liability to Subscriber for any loss or corruption of any such data, and Subscriber hereby waives any right of action against Ravin arising from any such loss or corruption of such data.
Support Services Terms
These Support Services Terms set forth the terms, conditions, and procedures under which maintenance and support ("Support Services") is offered for the Subscription Service during the Term of the Subscriber’s subscription for such Subscription Services as set forth in the applicable Order Form. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
Scope. Support Services will consist of: (i) e-mail support; (ii) correction of errors to keep the Subscription Services in conformance with the user Documentation included in the Subscription Services; and (iii) Updates provided by Ravin to its general subscriber base of subscribers at no additional charge. Support Services will not include: (i) set-up, installation, or configuration of hardware and software required for the Subscriber to access the Subscription Service; or (ii) consultation, error correction, or research with respect to Subscriber-created documents and information.
Representative. A Subscriber representative will be designated by Subscriber for communicating with Ravin concerning Support Services, or making any other request or providing any notice. Subscriber may change the representative upon written notice to Ravin.
2. SUPPORT SERVICES
Technical Support. Subscriber will have access to Ravin’s technical support personnel ("Technical Support") as follows:
Hours: Monday - Friday, 09:00 am to 11:59 pm GMT (excluding Israel and US holidays).
Communications with Technical Support will be via e-mail. Ravin provides a single entry point of contact that routes requests/problems to the appropriate Technical Support. The severity level of the problems reported by Subscriber shall be reasonably determined by Ravin. Ravin will resolve each reported error or issue with the Subscription Services by using commercially reasonable efforts to provide: (i) a patch or fix as necessary; or (ii) a reasonable workaround for the error or issue; or, if either (i) or (ii) are not reasonably practicable, a specific action plan regarding how Ravin intends to address the reported error or issue and an estimate on how long it may take to correct or workaround the error or issue. Subscriber agrees to use commercially reasonable efforts to assist and provide information to Ravin as required to resolve errors or issues with the Subscription Services reported by Subscriber.
3. RAVIN ISSUES.
Support Services covers any issue or problem that is the result of a verifiable, replicable error (Ravin will use all reasonable means to verify and replicate) in the Subscription Services ("Verifiable Issue"). An error will be a Verifiable Issue if it constitutes a material failure by the Subscription Services to function in accordance with the Documentation included in the Subscription Services. If Technical Support reasonably determines that Subscriber’s problem is not caused by Ravin or its systems, equipment, or software, Ravin is not obligated to provide support under this Agreement. Nevertheless, Ravin will, if possible, offer suggestions as to how Subscriber can remedy the problem. If Ravin determines that the issue was not the result of a Verifiable Issue, Ravin may offer to provide for out of scope professional services at Ravin’s then current rates upon its standard terms to address the issue.
4. SUBSCRIBER’S RESPONSIBILITIES.
Subscriber’s designated representative shall initiate all requests for Support Services. The representative must be trained, qualified and authorized to communicate all necessary information, perform diagnostic testing under the direction of the Ravin service representative and be available during the performance of any Support Service if required. Subscriber shall insure equipment, Internet connectivity and power are functioning to enable proper performance.
5. SERVICE LEVEL.
The Subscription Service will, subject to the exceptions listed below, be available 99% of the time during each calendar month from the time that the Subscription Services go-live in Subscriber’s production environment (referred to herein as the “Availability Commitment”). The availability of the Subscription Service for a given month will be calculated according to the following formula (referred to herein as the “Availability):
Where: Total minutes in the month = TMM
Total minutes in the month the Subscription Service is unavailable = TMU
And: ((TMM-TMU) X 100)/TMM
For purposes of this calculation, the Subscription Service will be deemed to be unavailable (referred to herein as “Unavailable”) if the Subscription Services suffer an error or issue in a production down situation which cannot be reasonably circumvented and which so substantially impairs the performance of the Subscription Services or any components of the Subscription Services, which are critical to the Subscriber’s business, as to effectively render them unusable. Further, the Subscription Service will not be deemed Unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth below. Ravin’s records and data will be the basis for all service level calculations and determinations.
Exceptions. The Subscription Service will not be considered to be Unavailable for any outage that results from any scheduled maintenance performed by Ravin, for which the Subscriber would be notified in advance. Additionally, the Subscription Service will not be considered Unavailable for any outage unavailability of the Subscription Service due to (a) Subscriber’s information content or application programming, acts or omissions of Subscriber or its agents; (b) delays or failures due to circumstances beyond Ravin’s reasonable control that could not be avoided by its exercise of due care; or (c) failures of Internet backbone itself and the network by which Subscriber connects to the Internet backbone or any other network unavailability outside of the Ravin Network.