During the Subscription Term, BuyerAssist agrees to provide 99.9% Application Availability measured per month (“Uptime Commitment”). The term “Application Availability” means that the Subscription Services are available and working without material functional degradation. Application Availability is measured at the point where the Subscription Services are made available on the Internet from the applicable BuyerAssist data center and are exclusive of unavailability caused by the Customer, outages by third-party Internet transport providers, scheduled maintenance periods (which BuyerAssist shall endeavor to perform during non-business hours and weekends where commercially practicable) or because of other causes beyond BuyerAssist's (or its provider's) reasonable control (“Excused Downtime”). BuyerAssist will use reasonable efforts to provide advance notice of scheduled unavailability of the Subscription Services within the Subscription Services portal or by email.
In the event BuyerAssist fails to meet Application Availability of at least 99.9% or higher in any given month, the Customer may request within 30 days of such unavailability and BuyerAssist will provide upon validation of the unavailability, the Subscription Services Credit indicated below for such month against the immediate subsequent billing period’s total invoice for Subscription Services or, if no further fees are payable under the applicable Service Order, a pro-rata refund of any prepaid fees for the Subscription Services based on the schedule below for each month in which BuyerAssist failed to maintain Application Availability of at least 99.9%. A “Credit” is the percentage of the monthly Services fees for the Services that are credited to the Customer for downtime, other than Excused Downtime, below the Uptime Commitment, as set forth below.
Application Availability %
99.9 to 100
99 to 99.8
95 to 98.9
In the event that BuyerAssist has failed to meet Application Availability of at least 99% for any three consecutive months period of any Subscription Term, Customer will have the right within 10 business days of such failure or consecutive miss to immediately terminate this Agreement and receive a refund for all prepaid fees for Subscription Services, prorated to the effective date of the Subscription Services unavailability or the date of the third consecutive monthly miss.
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