This Software-as-a-Service Addendum (this "SaaS Addendum") only applies to the extent a SaaS solution is designated on a Quote and Order between Customer and ZOLL®. Capitalized terms not defined below but used herein will have the same meaning as in the ALS/BLS Software Solutions Master Software, SaaS and Services Agreement.
Subject to the terms and conditions of the Agreement, during the Term (as defined in the applicable Order), ZOLL will use commercially reasonable efforts to make SaaS available to Customer in accordance with the Documentation. ZOLL may modify and update SaaS, on an ongoing basis, including adding, removing or modifying the functionality or features of SaaS, as long as its functionality is not materially diminished. ZOLL will use commercially reasonable efforts to notify Customer prior to the implementation of such changes affecting SaaS utilized by Customer. ZOLL will, at no additional charge, provide applicable standard customer support for SaaS to Customer as detailed in the applicable Documentation.
Subject to the terms and conditions of the Agreement, including the disclaimer in Section 9.C of the Agreement, ZOLL warrants that during the Term, SaaS will materially operate in accordance with the Documentation. Customer must provide written notice to ZOLL within thirty (30) days of the alleged inconsistency with this warranty, otherwise this warranty will be void. Customer's sole remedy and ZOLL's sole obligation in the event of a breach of this warranty is for ZOLL to, at ZOLL's option and expense, correct the material nonconformity or terminate the applicable Order and refund Customer pre-paid Fees for unused Software or SaaS.
A. Service Level Commitment. ZOLL will use commercially reasonable efforts to make SaaS available to Users with a Monthly Uptime Percentage (as defined below) of at least 99.0% during any calendar month (the "Service Level Commitment"). The Service Level Commitment does not apply to Customer's access of Inactive Customer Content (as defined below).
B. Definitions.
I. "Monthly Uptime Percentage" is calculated each calendar month as follows:
((Total – Unexcused Downtime) / Total) * 100 = Monthly Uptime Percentage.
II. "Total" means the total minutes in a calendar month.
III. "Unexcused Downtime" means Downtime, excluding Excused Downtime.
IV. "Downtime", expressed in minutes, means any time SaaS is not available to Users.
V. "Excused Downtime" means Downtime caused by: (a) Standard Maintenance; (b) Emergency Maintenance; (c) services, software or hardware provided by anyone or any entity other than ZOLL (such as a cellular network carrier or mobile handset provider); (d) software, services or systems operating outside of ZOLL's control, including any software or systems operating on a Customer's premises (including ZOLL software operating on such premises); (e) a Force Majeure Event; or (f) Customer's or its Users' acts or omissions.
VI. "Standard Maintenance" means work performed by ZOLL when system updates are desirable (including, without limitation, standard software release and non-critical software updates). Standard Maintenance may be performed weekly on Monday and Wednesday between the hours of 7 p.m. and 11 p.m. Mountain Time. ZOLL will inform Customer at least twenty-four (24) hours in advance of Standard Maintenance.
VII. "Emergency Maintenance" means work performed by ZOLL when a critical system update must be applied quickly (including, without limitation, hardware patches that address server vulnerabilities or a critical software update). ZOLL will use commercially reasonable efforts to inform Customer at least thirty (30) minutes in advance of Emergency Maintenance.
VIII. "Active Customer Content" means files that may be viewed and modified using the SaaS solution.
IX. "Inactive Customer Content" means files that have been converted to generic form (e.g. PDF, sound files) and may be viewed using third-party applications. Conversion maintains high-level information for trending / filtering purposes.
C. Service Credit. For any calendar month where the Service Level Commitment for any SaaS is not met, ZOLL will provide a service credit equal to ten percent (10%) of Customer's monthly average fee for such SaaS ("Service Credit"); provided that Customer must: (I) request such Service Credit in writing within thirty (30) days of the end of the calendar month in which ZOLL failed to meet its Service Level Commitment; and (II) include in such request the nature, date and time of the Unexcused Downtime. If ZOLL is able to verify such Unexcused Downtime, such Service Credit will be applied to a future invoice for such SaaS. Failure to submit a written request for Service Credit as provided in this Section will constitute a waiver of such Service Credit by Customer. The Service Credit set forth in this Section will be Customer's sole and exclusive remedy for ZOLL failing to meet the Service Level Commitment for any SaaS in a given calendar month.
D. Modifications. Notwithstanding anything to the contrary in the Agreement, ZOLL may revoke administrative rights, including database access rights, if the use of any such rights results in Downtime. Notwithstanding anything to the contrary in the Agreement, ZOLL may cease providing any SaaS upon at least six (6) months' notice to Customer.
A. Security. ZOLL will implement commercially reasonable security measures designed to prevent unlawful access to Customer Content by third parties.
B. Customer Compliance. Although ZOLL will use commercially reasonable efforts to (i) maintain the integrity of the Customer Content, (ii) back up the Customer Content and (iii) provide full and ongoing access to SaaS, loss of access to SaaS and loss of Customer Content may occur. Customer is solely responsible for maintaining any Customer Content that it requires for archival purposes, ongoing management of its operations or compliance with all records retention requirements applicable to it. Customer agrees that it is not relying on ZOLL to assist with determining the records maintenance or retention requirements applicable to it. ZOLL will not be responsible for any loss, corruption of or inaccessibility of the Customer Content due to interruption in SaaS or otherwise arising out of circumstances not within ZOLL's control.
C. Retention Period for Active Customer Content. Unless otherwise specified in the Agreement, ZOLL will store Active Customer Content until the earlier of (i) one (1) year from the creation of the Customer Content or (ii) the expiration or termination of this Agreement or the Order under which such Active Customer Content was stored. At that time Active Customer Content will be converted by ZOLL to Inactive Content.
D. Retention Period for Inactive Customer Content. Unless otherwise specified in the Agreement, ZOLL will store Inactive Customer Content until the earlier of (i) five (5) years from the creation of the Customer Content or (ii) the expiration or termination of this Agreement or the Order under which such Customer Content was stored. After this period Inactive Content will be managed as defined below ("Return of Customer Content").
E. Return of Customer Content. Upon the expiration or termination of this Agreement or the Order, ZOLL will notify Customer with instruction on how to retrieve their Content. Customer will have ninety (90) days from notification to retrieve their Content. After this ninety (90) day period, ZOLL will have the right to destroy the Customer Content.
ZOLL shall provide SaaS implementation services, training and any related services identified in a Quote and Order (the "Implementation Services"). Customer shall, in a timely manner and at its own expense, cooperate and provide or make available to ZOLL access to the Customer's premises, systems, telephone, terminals and facsimile machines and all relevant information, documentation and staff reasonably required by ZOLL to enable ZOLL to perform the Implementation Services. Customer acknowledges that any time frames or dates for completion of the Implementation Services set out in an Order are estimates only and the ability to meet them is influenced by a range of factors including, without limitation, response times and level of cooperation of Customer. Any obligations as to time are therefore on a "reasonable efforts" basis only and ZOLL shall not be liable for failure to meet time frames or completion dates unless solely due to ZOLL's negligence.
ZOLL shall provide the following Support Services for SaaS without any additional Fees, except that ZOLL will have no obligation to provide such Support Services if any Fees for SaaS are past due.
7.1 Support.
7.1.1 Emergency Support. ZOLL shall provide telephone support to Customer for 24 hours a day, 7 days a week, to address Errors that prevent Customer from using Supported SaaS for a purpose for which Customer has an immediate and material need. "Supported SaaS" means the SaaS for which Customer has paid the then-current Fees. "Supported Environment" means a browser and other technical environment that supports the use of the SaaS in accordance with the Documentation. "Error" means a reproducible defect in the Supported SaaS when operated in accordance with the Documentation in a Supported Environment that causes the Supported SaaS not to operate substantially in accordance with such Documentation.
7.1.2 Technical Support. ZOLL shall provide telephone support to Customer between 6 a.m. and 6 p.m. Eastern Time, Monday to Friday, excluding ZOLL holidays ("Business Hours") to address all other Errors relating to any Supported SaaS. Such telephone support will include (i) clarification of functions and features of the Supported SaaS; (ii) clarification of the Documentation; (iii) guidance in operation of the Supported SaaS; (iv) assistance in identifying and verifying the causes of suspected Errors in the Supported SaaS; and (v) advice on bypassing identified Errors in the Supported SaaS, if reasonably possible. Responses to such reporting shall be provided at a minimum within twenty-four (24) hours during Business Hours.
7.1.3 Resolution. ZOLL shall use commercially reasonable efforts to provide a modification or workaround to Supported SaaS that resolves an Error in all material respects ("Resolution").
7.1.4 Expense. Support Services provided hereunder shall be provided from Chelmsford, Massachusetts, or Broomfield, Colorado, as determined in ZOLL's sole discretion. Should Customer request that ZOLL send personnel to Customer's location to resolve any Error in the Supported SaaS, ZOLL may charge Customer a fee of $2,500 for each day ZOLL personnel is at Customer's location.
7.1.5 Exceptions. ZOLL shall have no responsibility under this Agreement to fix any Errors arising out of or related to the following causes: (a) Customer's modification or combination of the software used to access the SaaS and Software applications ("Access Software") (in whole or in part), (b) use of the Supported SaaS in an environment other than a Supported Environment; or (c) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of media not furnished by ZOLL; excessive heating; fire and smoke damage; operation of the Supported SaaS with other media and hardware, software or telecommunication interfaces; or causes other than ordinary use. Any corrections performed by ZOLL for such Errors shall be made, in ZOLL's reasonable discretion, at ZOLL's then-current time and material charges. ZOLL will provide the Support Services only for the most current release and the one immediately preceding major release of any Access Software. Notwithstanding anything to the contrary in the Agreement, (i) ZOLL may cease providing Support Services for any SaaS upon at least six (6) months advance notice to Customer of such cessation and (ii) Support Services do not cover third party products or services.
7.2 Conditions and Limitations. Customer shall provide ZOLL with access to Customer's personnel and its equipment. This access must include the ability to remotely access the equipment on which the Supported SaaS are operating and to obtain the same access to the equipment as those of Customer's employees having the highest privilege or clearance level. ZOLL will inform Customer of the specifications of the remote access methods available and associated software needed, and Customer will be responsible for the costs and use of said equipment. Fees for third party software and services are set by the owner of such software.
This Section 8 applies to Customers who have purchased a Comprehensive subscription package, in which the Customer’s pricing is based upon the total number of ALS devices using the Services (“Comprehensive Subscription Package”). During the term and for a period of one (1) year following termination or expiration of the applicable Order, ZOLL will have the right to perform an audit of the number of ALS devices using or which have used the Services to confirm that the Customer’s usage has not exceeded the agreed upon quantity; provided, however, that ZOLL will not perform such audit more often than once within a twelve (12)-month period. The audit period, as determined by ZOLL, may cover the period from the date of the audit back to the date the prior audit was completed or, if no prior audit was conducted, to the initial date of the subscription activation. The cost of the audit will be borne by ZOLL unless the audit reveals that Customer’s usage has exceeded the quantity of subscriptions purchased per the number of associated device by ten percent (10%) or greater, in which case the cost of the audit will be invoiced to Customer and Customer will pay the cost of the audit (including, but not limited to, personnel time). In the event that an audit reveals that the Customer’s usage has exceeded the agreed upon number of devices using or which used the Services, ZOLL will have the right to (i) invoice Customer, in arrears, for the excess usage identified through the audit and (ii) automatically increase the Customer’s pricing to match actual usage. Customer will promptly pay all such invoices for excess usage and pay such increased pricing in accordance with the payment provisions of this Agreement.