Service Level and Support Terms
The following service level and support terms (the “Terms”) are governed by and a part of the Master Services Agreement or other agreement (the “Agreement”) governing your use of the BioSticker™ wearable devices, BioHub connectivity gateway, and associated hardware and data as a service platform (the “Services”) between BioIntelliSense, Inc. (“BioIntelliSense”) and you (“Customer”). Capitalized terms not otherwise defined in these terms will have meanings assigned to them in the Agreement.
- “Error” means a repeatable failure of the Services to perform in substantial accordance with the Documentation.
- “Documentation” means BioIntelliSense’s then current documentation made generally available to its customers for use of the Services.
- “Error Correction” means the use of reasonable commercial efforts to correct Errors. Such corrections could include, but are not limited to, an interim solution or workaround to restore services until a final correction can be implemented.
- “Exclusions” means the exceptions to BioIntelliSense’s obligations under these Terms, including the Service Levels, as defined in Section 7 (Exclusions).
- “Priority 1 Error” means an Error that renders the Services inoperative.
- “Priority 2 Error” means an Error that substantially degrades the performance or use of the Services.
- “Priority 3 Error” means an Error that causes only a minor impact on the performance or use of the Services.
- “Release” means the deployment of software or other changes to the Services in BioCloud for Error Corrections or to improve or to add new capabilities to the Service.
- “Release Frequency” means the frequency on which BioIntelliSense will deploy releases within a calendar year.
- “Response Time” means the time for BioIntelliSense to respond to a call by Customer or an end-user to call for Support Services.
- “Support Services” means the BioIntelliSense support services, as described below.
2. Support Services
2.1. In General
BioIntelliSense will provide Customer and end-users with (i) reasonable Support Services via telephone, email, website trouble tickets (ii) Error Correction, and (iii) Service updates that BioIntelliSense in its sole discretion makes generally available to its other similarly situated customers without additional charge. BioIntelliSense’s telephone support for Priority 1 Errors is currently available Monday through Friday, 9 a.m. to 5 p.m. Mountain Time, except on BioIntelliSense holidays (“Support Hours”).
2.2. Support Coordination; End-User Support
BioIntelliSense will be responsible for providing Support Services only with regard to technical issues relating to use of the Services. Customer is responsible for all clinical and other healthcare-related issues or questions. The parties will reasonably cooperate in resolving any joint support issues and routing misdirected support inquiries to the proper party.
2.3. Error Correction
BioIntelliSense will use commercially reasonable efforts to correct reproducible Errors reported by Customer in the Services, in accordance with the priority level reasonably assigned to such Error by BioIntelliSense:
- Priority 1 Error: BioIntelliSense will promptly commence the following procedures: (i) assign BioIntelliSense resources to correct the Error; (ii) notify BioIntelliSense management that such Error has been reported and of steps being taken to correct such Error; and (iii) provide Customer with periodic reports on the status of the corrections.
- Priority 2 Error: BioIntelliSense will exercise commercially reasonable efforts to correct the Error or implement other remediation to address the performance or use of the Services.
- Priority 3 Error: BioIntelliSense may correct the Error in a later update to the Services.
2.4. Release Frequency
BioIntelliSense will deploy Releases as needed to maintain the proper functioning of the Services at time intervals reasonably determined by BioIntelliSense but no less than three (3) times in any calendar year.
2.5. Defective Devices related to Services
Defective Devices that are provided related to Services may be returned for replacement pursuant to the return terms set forth in the Agreement.
BioIntelliSense will have no obligation to furnish Support Services or provide Error Corrections for Errors caused by: (i) altered, damaged or modified Services or use of the Services with any technology, services, or software not furnished by BioIntelliSense; (ii) Customer’s or an end-user’s negligence, abuse or misapplication, or use of the Services other than as specified in the Documentation; (iii) failures or other issues in Customer’s or an end-users systems, Wi-Fi access, etc.; (iv) Customer’s failure to fulfill its obligations in Section 3;(v) for any services offered as Beta versions or (vi) by other factors beyond the control of BioIntelliSense.
3. Customer’s Obligations
Customer will have the following maintenance and support obligations:
3.1.All support requests will be submitted by Customer to BioIntelliSense through Customer’s Technical Support Contact. Customer may change its designations on written notice to BioIntelliSense.
3.2.Customer will reasonably and promptly cooperate with BioIntelliSense in troubleshooting the Services.
3.3.Customer will ensure the appropriate Customer personnel have been trained in the use and operation of the Services.
3.4.Customer will immediately cease use of any Services for which BioIntelliSense has furnished a replacement. Any continued use of the replaced Services will be at Customer’s sole risk and liability.
3.5.Customer will provide forecasts per month of intended Services purchases no less than frequently than quarterly.
4. Service Levels
In furnishing the Support Services, and Services, BioIntelliSense will use commercially reasonable efforts, subject to the Exclusions, to achieve the service levels set forth below (collectively, the “Service Levels”). All Service Levels are measured monthly. Credits may be used by Customer against future fees owed under the Agreement. Except as provided in Section 6 (Termination for Repeated Service Level Failures), the credits issues below are Customer’s sole and exclusive remedy and BioIntelliSense’s sole and exclusive liability for any failure to achieve the Service Levels. Customer must report a Service Level failure and request a credit within thirty (30) days of the failure. No credits will be issued for failures reported after the foregoing period.
|Service Level||Response Time||Error Correction||Remedy|
|Priority 1||Target response within two (2) hours of inquiry during Support Hours||24 hours||Escalation|
|Priority 2||Target response within twenty-four (24) hours of inquiry during Support Hours||48 hours||Escalation|
|Priority 3||Within 2 business days||Next Release||Escalation|
|Availability||With regard to BioIntelliSense’s cloud-based Services, the Services will be available for 99.5% of the time on average each calendar month.||NA||
Availability <99.5%, but >95%; credit of 3% of monthly Service fee paid during the month the failure occurred.
Availability <95%, but >90%; credit of 5% of monthly Service fee paid during the month the failure occurred.
Availability <90%; credit of 10% of monthly Service fee paid during the month the failure occurred.
|Fulfillment||Provided an order does not exceed Customer’s forecast (as provided in Section 3.5), BioIntelliSense will ship ninety percent (90%) of all orders within forty-eight (48) business hours of its acceptance of the order. Acceptance may be made electronically.||NA||
First monthly failure, credit of 1% of fees paid for BioSticker™ and BioHub devices that were the subject of the shipping delay.
Second consecutive monthly failure, credit of 3% of fees paid for BioSticker™ and BioHub devices that were the subject of the shipping delay.
|Replacement||Once BioIntelliSense confirms a product has an Error that requires replacement BioIntelliSense will ship a replacement device within forty-eight (48) business hours of that determination.||NA||Escalation|
In the event of ongoing Service Level failures, both parties will escalate the matter to appropriate senior executives to meet and confer in good faith regarding resolution.
Termination for Repeated Service Level Failures
In the event Availability is below 90% in any two months in a rolling four month period or there are two consecutive months of Service Level failures with regard to Latency or Product Fulfillment, in addition to the credits due under these Terms, Customer may terminate the Agreement on written notice to BioIntelliSense within thirty (30) days of the second failure.
BioIntelliSense is not responsible for any failure to perform under these Terms, including the failure to achieve any Service Levels, to the extent caused by any of the following conditions (collectively, the “Exclusions”):
- Any issue arising from the exclusions in Section 2.5 of these Terms;
- Customer or end-user environment issues affecting connectivity or interfering with the Services, including without limitation, Customer or end-user telecommunications connection or any other Customer or end-user software or equipment, Customer or end-user firewall software, hardware or security settings, including configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer or an end-user;
- any third-party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
- force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of BioIntelliSense; and
- scheduled maintenance of the Services, conducted on a regular basis, scheduled during non-peak hours of use of the Services (currently 12:00 a.m. to 5:00 a.m. PST).
No Third-Party Beneficiaries
The obligations and Service Levels provided in these Terms are personal to Customer. There are no third-party beneficiaries to these Terms. In particular, no end-user will be considered a third-party beneficiary.
Updates to Terms
BioIntelliSense may from time-to-time update these Terms by posting updated terms to this URL, and shall provide email notice of any such updates. No such update, however, will materially reduce BioIntelliSense’s obligations from those existing as of the Effective Date of the Agreement.
Last modified on April 22nd, 2020