Last Updated:  April 16, 2019

This Service Level Agreement (“Agreement”) constitutes a contract between CERTIFY Global Inc. (“CERTIFY”) and any person or entity who signs up to use CERTIFY’s Services through our Website or who signs a separate agreement regarding the Services (“you”) (each a “Party” and collectively the “Parties”).  This Agreement governs CERTIFY’s commitments regarding the availability of the Services, unless the Parties sign a separate agreement regarding the availability of the Services, and is effective as of the Effective Date.  If the Parties sign a separate agreement regarding the availability of the Services, the separate agreement will control.

The capitalized terms that appear in this Agreement have the same meanings as in CERTIFY’s Terms of Use, unless they are defined in this Agreement.

By using the Services, you agree to this Agreement.  IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.

1. SERVICE LEVEL

During the Term of the License to use the Services, CERTIFY agrees to make the Services available to you at least 99.9% of the time in any calendar month (“Service Level”).

2. SERVICE CREDIT

If we do not meet the Service Level in any calendar month, and if you meet your obligations under this Agreement, you will be eligible to receive a credit on your next monthly invoice.  The credit will be equal to the value of accessing the Services for the number of days set forth in the below table (“Service Credit”).

Your Service Credit may not be exchanged for or converted into monetary amounts.

The following definitions will apply for purposes of calculating any Service Credit you may be eligible to receive.

• “Downtime” means when there is more than a five percent (5%) user error rate.  For both individuals and entities that use the Services, Downtime is measured based on CERTIFY’s server-side error rate.  For entities that use the Services, Downtime is measured across all of the users who may access the Services.
• “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime incurred in a calendar month, divided by the total number of minutes in a calendar month.

The following formula will be used to calculate your Service Credit:

The maximum Service Credit you are eligible to receive in a calendar month may not exceed the value of fifteen (15) days of access to the Services under any circumstances.

3. REQUESTS FOR SERVICE CREDIT

To receive a Service Credit, you must notify CERTIFY within thirty (30) days of the time you become eligible to receive the credit.  If you fail to comply with this requirement, you will forfeit your right to receive a Service Credit.  To determine whether the Services are available, you may contact CERTIFY at  support@certifyhealth.com.

4. EXCLUSIONS

This Agreement does not apply to any software we provide that expressly excludes our Service Level Agreement.  Nor does this Agreement apply to any Downtime caused by events beyond our control as set forth in the Force Majeure provisions of this Agreement, problems with your computer systems, problems with third-party data processors or other service providers used in connection with your computer systems, or your misuse of the Services.

5. LIMITATIONS ON LIABILITY

The following limitations on liability are in addition to the limitations on liability set forth in CERTIFY’s Terms of Use.  If there is any conflict between those limitations and the below limitations, the below limitations will control, and the remaining limitations will continue in full force and effect.

YOU AGREE THAT THE ABOVE SERVICE CREDIT CONSTITUTES YOUR SOLE REMEDY FOR ANY FAILURE TO MEET THE ABOVE SERVICE LEVEL.

6. GENERAL

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   • Governing Law and Jurisdiction. In the event of any legal proceedings arising from or related to this Agreement, you agree that such proceedings will be governed by the laws of the State of Maryland, without regard to any conflict of law rules, and will be brought in state court in Montgomery County, Maryland.  The Parties expressly waive any challenges to personal jurisdiction and venue in these forums.
   • Injunctive Relief. You agree that your actual, attempted, or threatened violation of this Agreement will cause irreparable harm to CERTIFY for which there is no adequate remedy at law and that CERTIFY may seek any injunctive or equitable relief it deems appropriate in such circumstances. These remedies are in addition to any other remedies CERTIFY may have at law or in equity.
   • Jury Trial. You agree that, in the event of any litigation between the Parties, you waive your right to a jury trial.
   • Attorneys’ Fees and Costs. You agree that, in the event CERTIFY prevails in any legal proceeding arising from or related to this Agreement, or any actual, attempted, or threatened violation of this Agreement, CERTIFY will be awarded its attorneys’ fees and costs in addition to any other relief to which CERTIFY is entitled.
   • Entire Agreement. This Agreement constitutes the entire agreement of the Parties regarding the Services, and supersedes any prior agreements, understandings, or representations regarding the Services.  This Agreement cannot be modified, amended, or changed in any way, unless the Parties otherwise agree in writing.
   • Severability. You agree that, if a court holds any portion of this Agreement to be unenforceable for any reason, such portion will be enforced to the maximum extent possible and the remainder of this Agreement will be enforceable as written.
   • Waiver. You agree that a Party’s failure to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver of its right to assert or rely upon any such provision, right, or remedy in that or any other instance.
   • Assignment. Neither Party may assign, transfer, or otherwise dispose of its rights and obligations under this Agreement, unless the Parties otherwise agree in writing, except as part of a merger, acquisition, or disposition of all or substantially all of the assigning Party’s equity or assets.
   • Force Majeure. Neither Party will be held responsible for any delay or failure in performance of this Agreement, including any failure to meet the above Services Level, caused in whole or in part by any act or omission or other cause beyond such Party’s control, including fire, flood, storm, accident, terrorist attack, cyber attack, delay of supplier, or compliance with any law, rule, regulation, or government demand.  If any such event occurs, the period for performing the particular obligations prevented by such event will be deemed extended by the length of time such event continues.