Service Level Agreement (SLA)

Last updated: February 2, 2022

This Service Level Agreement (hereinafter: “SLA”), if agreed between the Parties, relates to Services provided by Shiftbase, with its principal office located at Groeneweg 2A in 2718AA, Zoetermeer, the Netherlands and registered with the Dutch Chamber of Commerce under registration no. 59514701
(hereinafter referred to as “Supplier”) to its customer (hereinafter “Customer”) by way of an Agreement.

The objective of this SLA is a quality assurance from the Supplier to the Customer. This SLA specifies different levels of quality of service (hereinafter "Service Levels"), namely: Standard and Priority.

The Agreement sets out the applicable Service Level. Depending on which Service Level is specified in the Agreement, the performance standards (such as Availability, Response Time and Resolution Time), responsibilities and procedures may vary. Where this is the case, it is indicated in this SLA.

Not all parts of the service(s) provided by Supplier are covered by this SLA. The Agreement sets out which (parts of) Supplier's service(s) are covered.

Capitalized terms used in the Service Level Agreement shall have the meanings set forth below.
1.1. Actual Availability: the actual of availability of the Service(s).
1.2. Agreement: the agreement between the Supplier and the Customer under which the
Supplier provides the Service(s) and of which any of Supplier’s offers and quotations approved by the Customer, as well as the General Terms and Conditions and, if agreed, this SLA form an integral part.
1.3. Backup: a backup copy of (parts of) the Service(s) and/or the data stored therein which may be restored by the Supplier in certain circumstances.
1.4. Customer: the legal or natural person, acting in the course of a profession or business, who has concluded an Agreement with the Supplier for the provision of (a) Service(s) by the Supplier.
1.5. Desired Availability: the level of availability of the Service(s) sought by the Supplier.
1.6. General Terms and Conditions: the general terms and conditions of the Supplier, which form an integral part of the Agreement.
1.7. Incident: substantial failure of the Service(s) to meet the functional specifications expressly agreed in writing between the Parties. An Incident will only be considered to exist if the Customer can demonstrate it.
1.8. Maintenance: repairs, updates, precautionary measures and regular checks of the Service(s) as described in more detail in Article 8.
1.9. Office Hours: the hours from 09:00 to 17:00 (CET) on Working Days.
1.10. Party/Parties: Customer or Supplier (singular) or Customer and Supplier together
(plural).
1.11. Resolution Time: the time between (i) the moment Supplier determines that there is an Incident and (ii) the time the Incident is fixed, the part of the Services causing the Incident is replaced, or a Workaround is  created, as determined by Supplier.
1.12. Response Time: the time, measured and recorded by the Supplier, between the moment an Incident is reported in accordance with the SLA and the confirmation of receipt and further handling by the Supplier towards the Customer.
1.13. Scheduled Maintenance: Maintenance that takes place at predetermined times.
1.14. Service(s): the specific service(s) that the Supplier provides to the Customer pursuant
to the Agreement. This SLA shall not apply to free versions or trial versions of the services provided by Supplier.
1.15. Support: verbal (telephonic) and written advice with regard to the use and operation of
the Service(s) as further described in Article 9.1.
1.16. Emergency Maintenance: Maintenance that is so urgent that it cannot be postponed
and that takes place at a time that cannot be predicted in advance.
1.17. Workaround: a temporary solution that substantially reduces the impact of an Incident on the Customer without fully eliminating the cause of the Incident.
1.18. Working Days: days, not being a Saturday, Sunday or generally recognised Dutch holiday, as well as days for which Supplier has indicated to be closed at least seven (7) calendar days in advance.

2.1. This document constitutes the SLA for the Service(s) as provided by the Supplier. The purpose of the SLA is to lay down the level of service with regard to various (parts of) the Service(s). This is achieved by describing important characteristics, establishing performance standards and laying down the consequences of failing to achieve these standards.
2.2. This SLA extends exclusively to paid Service packages. The provisions of this SLA do not apply in the event Customer contracted with Supplier for a free version or trial version of the Services.
2.3. The SLA shall commence at the time of conclusion of the Agreement and shall be entered into for the same period as the agreement under which the Service is provided, unless otherwise agreed. The SLA will automatically terminate on the date the Agreement ends.
2.4. This SLA covers only the following standard support activities of Supplier:

a. performing Maintenance;
b. handling of Incidents;
c. monitoring and guarding Desired Availability;
d. providing Support; and
e. making Backups.

2.5. In addition to these standard support activities, the Supplier may perform other
activities on behalf of the Customer. These activities may be charged separately, as
specified in Article 9.
2.6. The SLA has different Service Levels based on which Supplier offers the Customer different levels of service, namely: Standard and Priority. Depending on which Service Level is agreed, the performance standards such as Availability, Response Time and Resolution Time), responsibilities and procedures may vary. Where this is the case, it is indicated in this SLA. The Agreement specifies which Service Level applies to which part of which Service(s) for the Customer. 

3.1. To report Incidents, depending on the agreed Service Level, the Customer will use the
following contact information.

4.1. Incidents shall be reported to the Supplier by the Customer in accordance with Article 3. If Incidents are reported to the Supplier in any other way, for example through other telephone numbers or e-mail addresses, correct handling may not be possible.
4.2. When reporting a possible Incident, the following information must be provided to
Supplier:

a. company name Customer;
b. Name of the contact person for this potential Incident at Customer;
c. Current contact information (phone number, (mobile) phone number, email
address) of that contact person;
d. description of the Incident, as accurately as possible;
e. Description of the steps already taken by the Customer to resolve the issue.

4.3. Incidents, provided they are amenable to further handling by the Supplier, will be classified into the priority levels below. The priority level will be reasonably determined, based on the notification by the Customer, by the Supplier's support employee handling the report. The Supplier may change the priority of an Incident, for instance if there is a change in the situation that makes the Incident less or more urgent. 

4.4. The table below shows Supplier's best effort obligation when dealing with Incidents, by priority level.

4.5. On classification of a report as an Incident, the Supplier will make all commercially reasonable effortsto resolve the Incident as quickly as possible, to replace (the relevant part of) the Service(s), or to create a Workaround. The Supplier's support employee will notify the Customer's contact person regarding a report of an Incident by e-mail within the Response Time:

a. The priority level of the Incident; and – if these are already known –
b. The cause and method of resolution of the Incident.

4.6. In order to provide feedback to the Customer, the Supplier must be in possession of valid contact details of the Customer's contact person in accordance with Article 3. The Customer is responsible for providing correct and up-to-date contact details. If the contact details known to the Supplier are not correct due to an act or omission by the Customer, the Supplier's attempt to provide feedback will be deemed to be the time of feedback.
4.7. The Customer agrees to assist to the best of his ability in resolving the Incident. The Customer shall also provide (remote) access to the Supplier to the services, networks and locations where the Incident can be remedied, to the extent the Customer can provide access.
4.8. Supplier will use an escalation procedure which will be deployed when an Incident cannot be resolved (in reasonable expectation) within a specified time (Resolution Time). During this procedure, Supplier will deploy all reasonably available resources (including, if it deems it necessary, external technical engineers) to expedite the resolution of the Incident. During the escalation procedure, specific agreements on the resolution of the Incident with the Customer may also be made. During the escalation procedure the Supplier will keep the Customer informed (during Office Hours) of the progress in resolving the Incident every 6 hours.

5.1. Supplier shall ensure twenty-four (24) hours per day, seven (7) days per week
throughout the year that the Service(s) are available the percentages of that time listed
below, to be designated as the Desired Availability.

5.2. ‘Available' means that the Service(s) can be accessed and used by the Customer. Nonavailability caused by force majeure under the law and/or force majeure as defined in the General Terms and Conditions, Scheduled Maintenance and failures of connection and/or equipment beyond the control of the Supplier, including the Customer's own connection and/or equipment, shall not be considered as non-availability in the
calculation of Actual Availability.
5.3. Actual Availability is calculated monthly by Supplier as follows:

"DB" = Percentage of Actual Availability;
"GB" = Desired availability in minutes;
"G" = The number of minutes the Service is unavailable.

6.1. For the purpose of establishing whether the Desired Availability mentioned in Article 5 is achieved, a sample of the relevant data shall be taken every minute. An average is calculated on the basis of these samples. This average will determine whether the set
standards of Desired Availability are exceeded, unless the Customer provides evidence to the contrary.
6.2. Customer reports of alleged non-availability and upon receipt of a report of nonavailability of the Service(s) as referred to above, will be responded to by Supplier in accordance with the Response Times stated in Article 4.
6.3. Supplier will report availability through https://status.shiftbase.com/.

7.1. If the Supplier does not meet the Response Times and/or Resolution Times mentioned in Article 4, Supplier shall pay or credit a penalty amount for each hour - in which response, against Supplier's promises, is not forthcoming - equal to the below mentioned portions of the monthly amount due for the relevant Service(s).

7.2. Supplier shall pay or credit a penalty amount equal to the portions of the monthly amount due for the relevant Service(s) listed below for each day that the Actual Availability is less than the Desired Availability.

7.3. If the Supplier, on its own initiative or at the request of the Customer, determines that a fee is due, the Customer shall be notified in writing and credited on the next invoice. If the Customer believes that a penalty amount is due while the Supplier is not paying it, the Customer must make a written request to that effect and provide proof.
7.4. The Supplier’s obligation to pay out penalties under Article 7 shall replace any right or claim to compensation the Customer may have or acquire as a result of the Supplier's failure to comply with this SLA. The amount of the penalty shall never exceed the monthly amount due under the Agreement.
7.5. No penalty amount shall be payable and no liability shall exist on the part of the Supplier for failure to achieve Service Levels or other commitments under this SLA, if and to the extent the failure to achieve the Service Levels results from:

a. act of the Customer in violation of its obligations under the Agreement;
b. one or more configuration or installation errors by the Customer;
c. the actions of a third party to the extent that, according to generally accepted practice, this should be at the expense and/or risk of the Customer, or at least not at the expense and/or risk of the Supplier;
d. force majeure under the law and/or as defined in the Terms and Conditions; or
e. deficiencies in products or services purchased by the Customer from third parties.

8.1. Supplier may from time to time at its own discretion perform Scheduled Maintenance on the Service(s). The Supplier shall ensure any related downtime occurs outside of Office Hours. The Supplier shall notify the Customer of Scheduled Maintenance resulting in downtime at least three (3) Working Days in advance. Scheduled Maintenance is not included as non-availability in the calculation of the Actual Availability.
8.2. Supplier shall make all commercially reasonable efforts to never allow Scheduled Maintenance to cover more than a maximum of eight (8) hours.
8.3. If Emergency Maintenance to the Service(s) is necessary in the opinion of Supplier, this is permitted at any time. The Supplier shall make all commercially reasonable effort to announce the occurrence of the Priority Maintenance as early as possible. Because of the urgency that is usually involved in Emergency Maintenance, the work may already have begun when the announcement is made. Non-availability due to Emergency Maintenance shall be included in the calculation of the Actual Availability.
8.4. The Customer may request the Supplier to perform Maintenance. The Supplier is at all times entitled to refuse such a request, including but not limited to the situation where the performance of Maintenance may have a (negative) effect on the compatibility with the Service(s) and/or Actual Availability and/or falls outside the scope of the SLA and/or Agreement.

9.1. Supplier provides Support in the delivery of the Service(s) in the form of answering brief questions, user support and other work that in Supplier's judgment is supportive to the Services and can be performed quickly and easily. Support may be requested using the below contact information.

9.2. In addition to the Support mentioned in paragraph 1 and the other support activities in this SLA, the Supplier may be willing to perform certain other activities for the Customer. At the Customer's request, the Supplier may, at its own discretion, prepare
a proposal for the work in connection with that request.
9.3. In the event that:
a. an Incident can be attributed to Customer, as in the cases referred to in Article 7.5.a and Article 7.5.b; and/or
b. a situation occurs as described in Article 3.2; the Supplier is entitled to charge costs for the handling of the relevant Incident without the Customer's prior consent, in accordance with the usual hourly rates. 

10.1. The Supplier shall apply commercially reasonable efforts to make Backups every twenty-four hours for the Customer's benefit.
10.2. The Backups are stored in a different geographical location than where the original data is stored with a minimum linear distance of 250 kilometers.
10.3. The Backups made by the Supplier are primarily intended for catastrophic Incidents on the part of the Supplier that may affect the Customer. If the Customer requests the Supplier to restore or provide certain files  Without such incidents occurring, the Supplier may charge the Customer reasonable costs for this, based on the usual hourly rates. The Supplier may refuse such a request by Customer at any time

11.1. The Supplier reserves the right to amend or supplement this SLA. Amendments shall also apply to Agreements already concluded Subject to a period of 30 days after the announcement of the amendment.
11.2. Changes will be announced on the Supplier Website, or any other channel for which the Supplier can prove that the announcement has reached the Customer. Non-substantive changes of minor importance may be made at any time and do not require notice.
11.3. If a change significantly negatively affects the Customer's position and the Customer does not want to accept this change, the Customer must notify the Supplier of this in writing, stating reasons, within two weeks of its announcement. This SLA shall then remain unchanged.

12.1. This SLA is governed by Dutch law.
12.2. Any disputes arising from the SLA shall be submitted to the Dutch courts in the place where the Supplier has its principal place of business.
12.3. Where this SLA refers to "written", it shall also mean "digitally written", provided that the identity of the sender and the integrity of the content can be sufficiently established.
12.4. If any provision of the SLA proves to be void or voidable or is otherwise declared invalid, the remainder of the SLA will remain in full force. In such a case, the parties will consult on a new provision which, as far as legally possible, comes as close as possible to the original provision in terms of nature and scope.