Hosting & Support Policy

 

 

 

 

Customer agrees to comply with this Hosting and Support Policy (this “Policy”) and to remain responsible for its Users (as hereinafter defined). Services rendered under this policy may also be subject to the terms and conditions of the Creative Services Policy and the Software and Integrated Services Policy.  Terms not defined herein shall have the meaning set forth in the applicable Master Services Agreement (“MSA”), Estimate, or Statement of Work (“SOW”) (each an “Agreement” and collectively the “Agreements”).

1. Hosting Services. Fly More Kites Agency Series dba FMK Agency (“FMK”) will host the Software on physical or virtual servers (the “Host Servers”) so as to provide access to the Software via the Internet at a unique domain or URL to be designated by Customer (the “URL”). Except for scheduled Maintenance Windows as described in Section 2 below, FMK will use commercially reasonable efforts to ensure that the Host Servers will be continuously available twenty-four (24) hours a day, seven (7) days a week, but, except as expressly set forth herein, FMK does not represent or warrant that there will be no interruptions in service or that Customer and its Users will be able to access the Software at all times without interruption. Customer acknowledges and agrees that Customer and its Users may experience occasional temporary interruption of service and occasionally may not be able to access and/or use the Software, and Customer’s exclusive remedy for any interruption that is caused by FMK shall be the issuance of Service Interruption Credits pursuant to Section 3 below. FMK shall have sole discretion with respect to all protocols, procedures and technical requirements relating to the hosting of the Software, the hosting environment, the Host Servers, and the design and functionality of the interface and the URL. If Customer is entitled to receive copies of any code for the Software, FMK will provide such code upon Customer’s request as a downloadable file. Customer is solely responsible, at its sole cost and expense, for procuring all necessary hardware, software, equipment and services necessary for Customer and its Users to access the Internet and to access and use the Software via the interface at the URL, including without limitation, the services of an Internet service provider. As used herein a “User” is any account or profile that has a valid username and password and that is capable of logging into the System (as hereinafter defined) and accessing the features and functionality of the System. As used herein the “System” is any software program, application, or platform that is hosted and supported by FMK. 

2. Maintenance Windows. FMK may perform system maintenance during scheduled “Maintenance Windows” during which Customer and its Users will be unable to access or use the Software. Maintenance Windows will occur as follows: (a) between the hours of 12:00am and 3:00am Eastern Time or 12:00am and 3:00am Pacific Time on the first and third Saturdays of each month; or (b) at a designated time and day provided that, for any Maintenance Window occurring pursuant to this clause (b), FMK will notify Customer at least five (5) business days in advance of such Maintenance Window. Customer understands and agrees that there may also be instances where FMK will interrupt the hosting Services without notice in order to protect the integrity of the hosting Services due to security issues, virus attacks, spam issues or other unforeseen circumstances (each or collectively, a “Security Related Interruption”).

3. Availability and Service Interruptions Credits. FMK will provide Availability (defined as that access to the Software via the interface at the URL without substantial degradation caused by a failure of FMK’s network, network infrastructure or the Host Servers, but excluding lack of access caused by problems with open-source software upgrades or Customer network or internet problems) for 95% of the Covered Time (defined as the time during a calendar month that excludes Maintenance Windows, Security Related Interruptions, and force majeure events as described in the MSA). FMK will implement commercially reasonable measures to monitor the Availability and downtime and all reasonable determinations and calculations made by FMK relating to Availability shall be final and binding on Customer. Provided that Customer is not in breach of any Agreement between the Parties, if FMK provides less than 95% Availability during the Covered Time and at the request of Customer deemed to be valid in FMK’s sole discretion, FMK will issue Customer a “Service Interruption Credit” consisting of a percentage of those Fees for the impacted services set forth in the applicable Solutions Agreement that are allocable to said calendar month (the “Monthly Hosting Fees”) calculated as follows:

Monthly Uptime	Service Interruption Credit (% of Monthly Hosting Fees)
93% – 94.999%	10%
90% – 92.999%	20%
0% – 90%	100%

No Service Interruption Credit issued for any such calendar month shall exceed the total amount of Monthly Hosting Fees paid or payable for such calendar month. If Customer is entitled to a Service Interruption Credit for any calendar month, such Service Interruption Credit shall be applied against future Monthly Hosting Fees owed by Customer pursuant to any Solutions Agreement, or if no future Monthly Hosting Fees are owed, the Service Interruption Credit shall be applied against other future Fees owed by Customer pursuant to any Solutions Agreement. If no such Monthly Hosting Fees or other Fees are owed by Customer (or if the amount thereof is less than the amount of the Service Interruption Credit owed), the Service Interruption Credit shall be extinguished and FMK shall have no obligation to make any payment to Customer with respect to such Service Interruption Credit.

4. Reporting, Monitoring and Compliance. FMK will make commercially reasonable efforts to monitor the overall performance of the hosting Services and to maintain systems and network infrastructure as required to maintain Software performance.

5. Storage. As part of the hosting Services, FMK may allocate Customer a specified amount of storage capacity for Customer Data and all back-ups and other materials created by Customer while using the Software (the “Customer Storage Capacity”). Customer shall be in breach of the Agreement if Customer exceeds the Customer Storage Capacity. If Customer exceeds the Customer Storage Capacity, FMK may, in addition to all other rights and remedies of FMK, provide reasonable assistance or advice to Customer to enable Customer to comply with the Customer Storage Capacity. FMK may elect to relocate or delete materials that FMK determines are non-critical to site and application functionality with reasonable advance notice.

6. Customer Responsibilities. Customer shall identify and name a contact for each hosting Service with whom FMK should communicate matters regarding hosting Services, such as maintenance notifications and escalations, and who has the authority to make hosting Services requests, including release of Customer Data, both internally to FMK and to Customer, restoration of data, and other configuration changes. Customer will retain responsibility for administering login information for Customer personnel and Users and for providing Customer personnel and Users with network access to the hosting Services.

If Customer violates this Policy, FMK may immediately suspend services with reasonable notice to Customer. If FMK and Customer cannot reach a resolution regarding said violation, FMK reserves the right to terminate the applicable Agreement(s) upon 30 days’ notice. Upon the expiration of a Term (as identified in the applicable Agreement) or upon the termination of an Agreement for any reason: (i) the right of Customer and its Customer Designee, if any, and and its Users to access and use Services or Materials pursuant to the Agreement(s) shall automatically terminate; (ii) Customer and its Customer Designee, if any, and its Users shall cease all access and use of Services or Materials; and (iii) Customer and its Customer Designee, if any, and its Users shall promptly destroy or securely erase all copies and derivatives of Services or Materials that are in the possession or under the control of Customer and its Customer Designee, if any, and its Users which exist in any format or on any media. FMK may delete all Customer data, information, and documents, including back-up copies, no earlier than 30 days after any termination, having provided Customer with access to data for duplication and retention.

7. Support Definitions. The following terms used in this Policy shall have the following meanings ascribed thereto:

7.1 “Support Case” means a report of a failure of the Software to perform in accordance with the performance features and specifications set forth in an Agreement or a policy. Any other submitted requests are not subject to the terms of this Policy.

7.2 “Normal Business Hours” means 8:00 a.m. to 8:00 p.m. Eastern time, excluding the following holidays: New Year’s Day, Martin Luther King Jr. Day, President’s Day, Memorial Day, July 4, Labor Day, Thanksgiving Day and the day after Thanksgiving Day, and the period between Christmas Day and New Year’s Day (and, when any of these days falls on a Saturday or Sunday, the Friday before or the Monday after, respectively). FMK only provides emergency support during the period between Christmas Day and New Year’s Day. While coverage is available during this time, Normal case resolution may be delayed until after the holiday period at the discretion of the FMK Support team.

7.3 Any day between Monday and Friday, inclusive, that does not fall on one of the holidays listed above shall be referred to herein as a “Business Day.”

7.4 “Platform Updates” means error corrections, modifications and enhancements released by the open-source licensor of the Software and which FMK implements or incorporates into the Software.

7.5 “Support Period” means the period equal to the Term set forth in the applicable Agreement.

7.6 “Customer Success Center” means any designated portal or mechanism that FMK may provide as part of the Services which enables Customer to electronically report Support Cases, request Support Services or request implementation or installation of additional software.  Consult your Account Manager to understand the current manner for reporting Support Cases.

7.7 “Support Services” means the services provided by FMK to Customer described in Section 9 below.

7.8 “Major Release” means releases that introduce major new features and improvements, changes to core architecture and APIs (such as refactoring). Major releases are normally once per year.

7.9 “Minor Release” means releases that include bug fixes, security patches, and minor improvements to previous major releases. They are stable and minimize the business impact of keeping implementations up-to-date on a given major version. Minor releases occur more frequently than Major Releases.

8. Submitting Support Cases and Support Requests. Any communication concerning the Support Services covered by this Policy shall be via email to Support@fmkagency.com or Customer Success Center, when adopted:

8.1 FMK will provide commercially reasonable on-call staff to receive and respond to Emergency Support Cases (defined below) outside of Normal Business Hours.

8.2 Customer’s administrators may make technical support requests and report Support Cases 24 hours per day, 365 days a year.

9. Support Services. FMK will provide Customer with the following Support Services during the Support Period:

9.1 FMK will respond to and seek to resolve Support Cases in accordance with the terms of the Support Case Classification and Resolution section, below.

9.2 FMK will implement and make available to Customer fixes, patches and releases relating to the Software that are generally released by FMK to its Customers to correct Support Cases or to implement minor enhancements to functionality.

9.3 FMK will periodically install Platform Updates as they become available and after any testing thereof that FMK deems necessary or appropriate. FMK may require additional Platform Updates for security, performance and ongoing Support Services purposes, at its sole discretion.

9.4 FMK will automatically update sites to the latest Minor Release available for your Platform.

10. Term. Customer shall be entitled to Support Services during the Support Period. All Support Services shall automatically terminate upon the termination of the applicable Agreement(s).

11. Support Case Classification and Resolution. Customer and FMK acknowledge and understand that Support Cases may be complex in nature, may involve several controllable and uncontrollable variables and may involve several different parties. Resolution may require information or action from various personnel at Customer, FMK or third parties to resolve, and that may adversely impact estimated resolution times. Customer and FMK acknowledge and understand that resolving Support Cases is a collaborative effort between all involved parties. While Customer may suggest an initial Support Case Classification, FMK reserves the right to modify such classification upon review of the Performance Issue. The following case type definitions will be used to classify support requests:

• “Emergency” — The Software or the URL is inaccessible to all Customer Users.
• “Urgent” — A Support Case which
  • Causes one or more significant functions of the Software to be impaired although it still operates; or
  • May delete, impair, damage or corrupt Customer’s systems or data; or
  • May have a material adverse impact on Customer’s business.
• “Normal” —
  • Problem — The Support Case causes only a minor impact on Customer’s use of the Software, including, without limitation, partial loss of access or functionality.
  • Noncritical — Although a Support Case exists, it does not impact the operation of the Software. The Support Case causes minor inconveniences such as cosmetic problems or documentation inaccuracies.
  • Service Requests — Customer initiates a request for one or more services that are covered by Customer’s current Agreement(s) with FMK. This includes normal operational maintenance requests such as a site upgrade or other operational support function.

These Support Cases classifications explicitly do not include new feature requests or Scoped Projects. 

12. Response and Resolution Times.

Classification	Initial Response	Final Resolution Target
Emergency	Within 30 Minutes	4 Hours
Urgent	Within 2 Business Hours	1 Business Day
Normal	Within 4 Business Hours	2 Business Days

The foregoing final resolution targets are not guaranteed and actual resolution times will vary depending upon the nature of the Support Case and the causes thereof. FMK does not and cannot ensure that all Support Cases will be resolved, or resolved within such timeframes. While a case is open, FMK will provide reasonable updates to Customer concerning the Support Case and the process that FMK is undertaking to resolve such Support Case.

13. Limitations on Support Services. FMK shall not be solely responsible for the resolution of the following types of Support Cases:

• 13.1 any error, malfunction or failure of the Software’s underlying open-source code (“OSC”) which requires the open-source licensor’s general release of a fix or update (“OSC Issue”); or
• 13.2 any error, malfunction or failure of the Software’s underlying platform which requires a fix or update (“Platform Issues”) or;any error, malfunction or failure of an add-on or plug-in or any third-party services or software utilized in connection with an add-on or plug-in (“Add-On Issue”); or
• 13.3 any error, malfunction or failure of any additional software or any hardware, server, software, or service of Customer, including but not limited to: Customer ISP problems; Customer DNS routing problems; Customer or end user use of incompatible hardware or software; or Customer network problems (“Customer-Side Issue”); or
• 13.4 any error, malfunction or failure of the Software as a result of any modifications thereto made by Customer that are not approved by FMK (“Customer Code and Theme Modification Issue”).

14. OSC Issues. In the event of an OSC Issue, FMK’s sole obligation shall be to report any identified errors to maintainer and, where possible, to suggest a fix to maintainer.

15. Platform Issues. In the event of a Platform Issue, FMK’s sole obligation shall be to install and implement the applicable Platform Update as soon as is reasonably practicable following the applicable open-source licensor’s release or authorization of such Platform Update and any testing thereof that FMK, in its sole and exclusive discretion, deems necessary or appropriate.

16. Add-On Issues. FMK shall have no obligation to provide any Support Services with respect to any add-on-related problems, or any problems caused by any hardware, software or services of Customer or a third party. FMK shall have no obligation to provide any Support Services with respect to any error, malfunction or failure in or of any additional software or problems caused by additional software. FMK reserves the right to remove, uninstall or disable any additional software, in FMK’s sole and exclusive discretion.

17. Customer-Side Issues. In the event of a Customer-Side Issue, FMK shall verify that Customer’s site can be accessed from the FMK Support team’s computers, report whether there is traffic to the Customer’s site and provide any other information available to assist the Customer in the identification or resolution of Customer-Side Issues.

18. Customer Code and Theme Modification Issues. In the event of a Customer Code and Theme Modification Issue, FMK reserves the right to remove, uninstall or disable any hosted Customer software, in FMK’s sole and exclusive discretion. FMK’s sole obligation shall be to notify Customer of its obligation to repair the problematic modification.

19. Continuous Updates. To avoid a site becoming unsupported and unsecure, FMK encourages regular upgrades of site software to guarantee the ongoing operation, support and security of a site. If a site becomes unsupported, and Customer then elects to upgrade the site to a supported version, such upgrade will result in the restoration of services and support as detailed in the Hosting and Support Policy.