Service Level Agreement
These service level agreement (“Terms”) are a part of and incorporated into the Master Services Agreement (“Agreement”) between Seller and Customer, and they govern the Seller’s support of the Subscription Services between Seller and Customer. Capitalized terms not otherwise defined in these terms will have meanings assigned to them in the Agreement.
- “Availability” means:
- BioCloud™ – the percentage of hourly vital sign readings received by BioCloud for client devices that are delivered to the client connection endpoint within 20 minutes of relevant data received in BioCloud.
- AlertWatch® / BioDashboard™ – the total minutes a monitoring system is able to log in and view data within a 10 minute period divided by the total minutes in a given month.
- Incident means a repeatable failure of the Subscription Services to perform in substantial accordance with the Documentation.
- Documentation means Seller’s then current documentation made generally available to its customers for use of the Subscription Services.
- Incident Correction means the use of reasonable commercial efforts to correct Incidents. Such corrections could include, but are not limited to, an interim solution or workaround to restore services until a final correction can be implemented.
- Exclusions means the exceptions to Seller’s obligations under these Terms, including the Service Levels, as defined in Section 7 (Exclusions).
- Monthly Service Fee means 1/12 of the annual subscription fees for the then-current contract year paid or payable by Customer under the Agreement.
- Priority 1 Incident means an Incident that renders the Subscription Services inoperative.
- Priority 2 Incident means an Incident that substantially degrades the performance or use of the Subscription Services.
- Priority 3 Incident means an Incident that causes only moderate impact and can be circumvented with only moderate disruption or impact on the use of the Subscription Services.
- Priority 4 Incident means an Incident that causes only minor or no impact and can be circumvented with only minor or no disruption or impact on the use of the Subscription Services.
- Release means the deployment of software or other changes to the Subscription Services in BioCloud, AlertWatch / BioDashboard for Incident Corrections or to improve or to add new capabilities to the Service.
- Release Frequency means the frequency on which Seller will deploy releases within a calendar year.
- Response Time means the time for Seller to respond to a call or report by Customer or an end-user for Support Services with an initial analysis of the Incident.
- Support Services means the Seller support services, as described below.
2. Support Services
2.1. In General
Seller will provide Customer and end-users with (i) reasonable Support Services via telephone or email (ii) Incident Correction, and (iii) Service updates that Seller in its sole discretion makes generally available to its other similarly situated customers without additional charge. Seller’s telephone and email support for Incidents is currently available Monday through Friday, 7 a.m. to 7 p.m. Mountain Time, except on Seller holidays (“Support Hours”). Notwithstanding the foregoing, Seller will maintain a 24×7 telephone support service to respond to Priority 1 and Priority 2 Incidents. In addition, the Seller will ensure the availability of the Subscription Services that are monitored and maintained 24×7.
2.2. Support Coordination; End-User Support
Seller will be responsible for providing Support Services only with regard to technical issues as well as its part of functional integrations relating to use of the Subscription Services. Customer is responsible for all clinical and other healthcare-related issues or questions. The parties will reasonably cooperate in resolving any joint support issues and routing misdirected support inquiries to the proper party.
2.3. Incident Correction
Seller will use commercially reasonable efforts to correct Incidents reported by Customer in the Subscription Services, in accordance with the priority level reasonably assigned to such Incident by Seller:
- Priority 1 Incident: Seller will promptly commence the following procedures: (i) assign Seller resources to correct the Incident; (ii) notify Seller management that such Incident has been reported and of steps being taken to correct such Incident; and (iii) provide Customer with periodic reports on the status of the corrections.
- Priority 2 Incident: Seller will exercise commercially reasonable efforts to correct the Incident or implement other remediation to address the performance or use of the Subscription Services. After 24 hours, if the Incident remains unresolved, Seller will commence the same procedures as for a Priority 1 Incident.
- Priority 3 Incident: Seller will correct the Incident at the next major update to the Subscription Services.
- Priority 4 Incident: Seller may correct at the Seller’s sole discretion.
2.4. Release Frequency
Seller will deploy Releases as needed to maintain the proper functioning of the Subscription Services at time intervals reasonably determined by Seller but no less than once in any calendar year.
2.5. Defective Devices related to Subscription Services
Defective Hardware under warranty that are provided as part of the Subscription Services may be returned for replacement.
3. Customer’s Obligations
Customer will have the following maintenance and support obligations:
3.1. Customer will designate local facility level and corporate representatives that will be able to submit tickets as the Customer “Technical Support Contact.” All support requests will be submitted by the Customer to Seller through the Customer’s Technical Support Contact. Customer may change its designations on written notice to Seller.
3.2. Customer will reasonably and promptly cooperate with Seller in troubleshooting the Subscription Services.
3.3. Customer will ensure the appropriate Customer personnel have been trained in the use and operation of the Services.
3.4. Customer will as quickly as reasonably possible cease use of any Subscription Services for which Seller has furnished a replacement. Any continued use of the replaced Subscription Services will be at Customer’s sole risk and liability.
4. Service Levels
In furnishing the Support Services, and Subscription Services, Seller will use commercially reasonable efforts, subject to the Exclusions, to achieve the service levels set forth below (collectively, the “Service Levels”). All Service Levels shall be measured monthly and reported to Customer upon request. Credits may be used by Customer against future fees owed under the Agreement. If no future fees are owed under the Agreement, Seller shall promptly issue Customer a refund equal to the amount of the outstanding credit. The credits issued below are Customer’s sole and exclusive remedy for any failure to achieve the Service Levels. Customer must report a Service Level failure and request a credit within thirty (30) days of the failure. No credits will be issued for failures reported after the foregoing period.
|Service Level||Support Service Hours||Response Time||Interim Resolution Time||Final Resolution Time||Incident Analysis and Report Back to Customer|
|Priority 1 Incident (inoperable)||24×7||Within two hours of inquiry receipt||85% of Incidents as soon as possible, but not to exceed 24 hours|
Remaining 15% of Incidents as soon as possible, but not to exceed 48 hours
|85% of Incidents in 3 months or less after implementation of the interim resolution|
Remaining 15% of Incidents in 6 months or less after implementation of the interim resolution
|3 business days or less|
|Priority 2 Incident (significant disruption)||24×7||Within 12 hours of inquiry during Support Hours||85% of Incidents as soon as possible, but not to exceed 48 hours|
Remaining 15% Incidents as soon as possible, but not to exceed 4 days
|85% of Incidents in 6 months or less after implementation of the interim resolution|
Remaining 15% of Incidents in one year or less after implementation of the interim solution
|5 business days or less|
|Priority 3 Incident |
(minor issue with moderate disruption)
|Support Hours||Within 2 business days||85% of Incidents in 20 business days or less|
Remaining 15% of Incidents as soon as possible, but not to exceed 60 business days
|100% of Incidents in the next major release of the Software||10 business days or less|
|Priority 4 Incident|
(minor issue with no or minor disruption)
|Support Hours||Respond within 2 business days||N/A||100% of Incidents at the Seller’s sole discretion||10 business days or less|
5. Availability Credit
Seller’s cloud-based services (BioCloud and AlertWatch / BioDashboard) will be available 99.9% of the time each calendar month. If such services do not meet this Availability, the following will apply:
- Availability ≤99.8% but > 99.5%: Seller will provide a report within thirty (30) days with an incident analysis and improvement actions.
- Availability <99.5%, but >99.0%: credit of 3% of Monthly Service Fee paid during the month the failure occurred.
- Availability ≤99.0%, but >97.0%: credit of 5% of Monthly Service Fee paid during the month the failure occurred.
- Availability ≤97.0%: credit of 10% of Monthly Service Fee paid during the month the failure occurred.
In the event of ongoing Service Level failures, both parties will escalate the matter to appropriate senior executives to meet and confer in good faith regarding resolution.
Seller is not responsible for any failure to perform under these Terms, including the failure to achieve any Service Levels, to the extent caused by any of the following conditions (collectively, the “Exclusions”):
- Customer or end-user environment issues affecting connectivity or interfering with the Subscription Services, including without limitation, Customer or end-user telecommunications connection or any other Customer or end-user software or equipment, Customer or end-user firewall software, hardware or security settings, including configuration of anti-virus software or anti-spyware or malware software, or operator Incident of Customer or an end-user;
- any non-Seller included third-party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
- altered, damaged or modified Products or use of the Subscription Services with any technology, services, or software not furnished by Seller; Customer’s or an end-user’s negligence, abuse or misapplication, or use of the Subscription Services other than as specified in the Documentation; failures or other issues in Customer’s or an end-users systems (e.g., Wi-Fi access); Customer’s failure to fulfill its obligations; any pre-commercial services offered as Beta versions (except for mutually-agreed integrations).
- force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of BioIntelliSense; and
- scheduled maintenance of the Subscription Services, conducted on a regular basis, scheduled during non-peak hours of use of the Subscription Services. Generally scheduled maintenance is designed to ensure no loss of data and minimal downtime for access to AlertWatch / BioDashboard, but may include temporary latency of data.
8. No Third-Party Beneficiaries
The obligations and Service Levels provided in these Terms are personal to Customer. There are no third-party beneficiaries to these Terms. In particular, no end-user will be considered a third-party beneficiary.
Last modified on November 10, 2023