OSPREY SYSTEM Service Level Agreement

Service Levels

 1.1 The Services shall be available to the service levels specified in this Service Levels Description. 

 1.2 The Services will (excluding any period of Force Majeure Event and any notified schedule interruption (“Previously Scheduled Interruptions”) have an Uptime Percentage (as defined below) of not less than 98% every quarter. 

 1.3 The Uptime Percentage will be calculated in accordance with the following formula: 

U%=(S-D)/S x100 

Where: 

“U%” = Uptime Percentage 

“S” = the number of hours in a relevant calendar quarter 

“D” = downtime, being the number of hours in a relevant calendar quarter during which the Services were not available to the Subscriber and/or not working materially in accordance with the Documentation (excluding from such hours any period of Force Majeure Event and Previously Scheduled Interruptions falling within the scope of Clause 1.8). 

 1.4 If the Services are not available as set out in this Service Level Description a Subscriber may claim an amount equal to the  percentage reduction in the Subscription Fee for that calendar quarter (that is, the Subscription Fee pro-rated for a calendar quarter) calculated in accordance with Clause 1.3 and Clause 1.5 within 21 days of notification in full and final settlement. 

1.5 The reduction in the preceding sub-clause will be calculated in accordance with the following table: 

Per Calendar QuarterReduction in Subscription Fee
Where U% is greater than 97% but less than 98%25%
Where U% is equal to or greater than 96% and less than or equal to 97%35%
Where U is equal to or greater than 95% and less than 96%45%
Where U% is equal to or greater than 94% and less than 95%60%
Where U% is equal to or greater than 93% and less than 94%75%
Where U% is less than 93%100%

 1.6 Osprey shall not be responsible for failure or delay in providing the Services if arising from one or more of the following reasons: 

 (a) the Subscriber being in material breach of its obligations under the Agreement; 

 (b) neither the Subscriber System Administrator(s) (as named in the Order Form) nor any other suitable person from the Subscriber being available when reasonably required by Osprey to assist in the rectification of the Fault causing the period of downtime; or 

(c) unreasonable delay by the Subscriber in notifying a failure to Osprey unless Osprey was already aware of the Fault or ought reasonably to have been aware of the Fault. 

1.7 Previously Scheduled Interruptions, together with interruptions to the access of the Services due to a force majeure event, shall not constitute downtime as defined in Clause 1.3. Osprey shall use reasonable endeavours to perform Previously Scheduled Interruptions outside of peak usage hours and in such a way as to minimise the potential impact on the Subscriber, and will provide the Subscriber with at least 5 (five) business days prior written notification of such works; however, there may be occasions where because of the nature of the work such notice cannot be observed or, exceptionally, that no notice can be given; in such circumstances Osprey will provide as much notice as it can or will provide notice as soon as possible after such an interruption. 

1.8 The inability of one or more Authorised Users to access the Services shall not constitute downtime if other Authorised Users are able to gain access at the same time or if Osprey can gain such access over a standard browser simultaneously as this demonstrates the Fault is not with the Services. 

2. OSPREY OBLIGATIONS AND SUBSCRIBER RIGHTS IN CASE OF FAULTS 

2.1 Osprey undertakes on an ongoing basis unless stated otherwise in this Service Level Description that: 

(a) it shall provide the Services in accordance with the service levels; 

(b) the version of the Services made available by Osprey pursuant to the Agreement will be the currently supported version of the Services, including any updates; and 

(c) the Services are free from Faults if it conforms to the specification in the Documentation. 

2.2 In case of any Faults, and without prejudice to Subscriber’s rights under Clause 1, Osprey shall, within a reasonable time after receiving notification from Subscriber of any Faults, remedy the Faults by either correcting the defective software or by replacing the defective software with non-defective software (without limiting the quality or functionality of the software). Where considered reasonable, Osprey may remedy Faults by revealing adequate and reasonable ways to work around the effects of the defect. 

2.3 Any claims in case of Faults are excluded: 

(a) if the Faults cannot be re-created; 

(b) if the Faults have been caused by any modification, variation or addition to the Services by the Subscriber not made by, or agreed by, Osprey or Osprey employees; 

(c) if the Faults have been caused by the incorrect use, abuse or corruption of the Services, or by use of the Services with equipment or software other than those specified by Osprey (unless otherwise approved by Osprey in writing); or 

(d) if the Faults have been caused by the introduction of any virus through acts or omissions by the Subscriber or any member of the Subscriber Group or any person under the reasonable control of the Subscriber or any member of the Subscriber Group. 

2.4 The Subscriber accepts that the Services was neither designed nor produced to its individual requirements and that the Subscriber was responsible for the selection of the Services. 

2.5 Save as set out above in this Service Level Description clause 2, all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the Services and the Subscriber Services are hereby excluded, but for the avoidance of doubt this exclusion shall not apply to any 

warranties, whether implied by law or otherwise, which may not be excluded by law. 

2.6 The claims set forth in this Service Level Description shall be the Subscriber’s exclusive remedy in case of Faults.