Kind shall provide the Software Services as follows:
Availability: Each calendar month, the Software Services shall be available to Customer at least 99% of the time. Availability is calculated as the total actual available minutes divided by total possible uptime minutes (less the permitted downtime described in clause 2 below) in a calendar month.
Permitted Downtime: Total possible uptime minutes does not include downtime minutes:
(i) required in order to perform the maintenance services described in clause 4 below;
(ii) Customer-caused or third party-caused outages or disruptions;
(iii) as a result of outages, disruptions or emergency maintenance attributable in whole or in part to force
majeure events within the meaning of clause 5.
Non-availability: The Software Service is not available when the Software Services, or a substantial part or essential feature thereof, is non-operational. It is expressly noted that the inability for one or more Users to access Customer Data via the Kind Application shall not be regarded as downtime, unless the inability is due to the Software Services, or a substantial part or essential feature thereof, being non-operational.
Maintenance Services: Each night between 00 and 02 (CET), the Software Services may be unavailable in order for Kind to perform back-up, support, maintenance and upgrades of the software. Kind shall strive to schedule all service and maintenance activities during the said maintenance window.
Force Majeure: The Software Services may be unavailable in situations involving causes beyond Kind’s reasonable control such as security threat, virus alert, service attack, power outages or other outages related to third parties. In such circumstances, Kind may perform emergency maintenance and will notify the Customer (to the extent possible) by telephone or e-mail promptly upon Kind receiving knowledge of such event. Kind will inform the Customer of the threat or problem, the response actions undertaken or proposed to be taken by Kind to react to such threat or problem, the estimated duration of the downtime (if known), as well as any recommended actions to be taken by Customer to minimize the impact of the threat or problem and/or identify and repair the problems caused by threat or problem.
To the extent that any situation referred to in this Section 5 is the result of or arise from any condition, circumstance or event caused by or under the control of Customer or any third party providing products or services to Customer, Customer shall use its best efforts to (and/or to cause its provider(s) to) eliminate or mitigate to the greatest extent possible such conditions, circumstances or events.
Informing Kind: Any problems relating to the Software Services shall be notified by Customer to Kind using the following service e-mail address: email@example.com.
Remedy: If the Software Services are not available to the Customer as stated in this SLA for three consecutive calendar months, Customer shall be entitled to terminate the Services Agreement. Termination shall be the Customer’s sole remedy, including financial remedy, for a failure by Kind to meet the availability commitments in this SLA.