This Software-as-a-Service Addendum (this “SaaS Addendum”) applies to SaaS designated in a current Order between Customer and ZOLL. Capitalized terms not defined below but used herein will have the same meaning as in the Master Software, SaaS and Services Agreement.
Subject to the terms and conditions of the Agreement, during the Term (as defined in the applicable Order), ZOLL will use commercially reasonable efforts to make SaaS available to Customer in accordance with the Documentation. ZOLL may modify and upgrade SaaS, on an ongoing basis, including adding, removing or modifying the functionality or features of SaaS. ZOLL will use commercially reasonable efforts to notify Customer prior to the implementation of such changes affecting SaaS utilized by Customer. ZOLL will, at no additional charge, provide applicable standard customer support for SaaS to Customer as detailed in the applicable Documentation.
Subject to the terms and conditions of the Agreement, including the disclaimer in Section 9.C of the Agreement, ZOLL warrants that during the Term, SaaS will materially operate in accordance with the Documentation. Customer must provide written notice to ZOLL within thirty (30) days of the alleged inconsistency with this warranty, otherwise this warranty will be void. Customer’s sole remedy and ZOLL’s sole obligation in the event of a breach of this warranty is for ZOLL to, at ZOLL’s option, correct the material nonconformity or terminate the applicable Order.
4. Service Level Agreement
- Service Level Commitment. ZOLL will use commercially reasonable efforts to make SaaS available to Users with a Monthly Uptime Percentage (as defined below) of at least 99.0% during any calendar month (the “Service Level Commitment”). The Service Level Commitment does not apply to Customer’s access of Inactive Customer Content (as defined below).
- "Monthly Uptime Percentage” is calculated each calendar month as follows:
((Total – Unexcused Downtime) / Total) * 100 = Monthly Uptime Percentage.
- “Total” means the total minutes in a calendar month.
- “Unexcused Downtime” means Downtime, excluding Excused Downtime.
- “Downtime”, expressed in minutes, means any time SaaS is not available to Users.
- “Excused Downtime” means Downtime caused by: (a) Standard Maintenance; (b) Emergency Maintenance; (c) services, software or hardware provided by anyone or any entity other than ZOLL (such as a cellular network carrier or mobile handset provider); (d) software, services or systems operating outside of ZOLL’s control, including any software or systems operating on a Customer’s premises (including ZOLL software operating on such premises); (e) a Force Majeure Event; or (f) Customer's or its Users’ acts or omissions.
- “Standard Maintenance” means work performed by ZOLL when upgrades or system updates are desirable (including, without limitation, standard software release and non-critical software updates). Standard Maintenance may be performed weekly on Monday and Wednesday between the hours of 7 p.m. to 11 p.m. Mountain Time. ZOLL will inform Customer at least twenty-four (24) hours in advance of Standard Maintenance.
- “Emergency Maintenance” means work performed by ZOLL when a critical system update must be applied quickly (including, without limitation, hardware patches that address server vulnerabilities or a critical software update). ZOLL will use commercially reasonable efforts to inform Customer at least thirty (30) minutes in advance of Emergency Maintenance.
- Service Credit. For any calendar month where the Service Level Commitment for any SaaS is not met, ZOLL will provide a service credit equal to ten percent (10%) of Customer's Monthly Fee for such SaaS (“Service Credit”); provided that Customer must: (I) request such Service Credit in writing within thirty (30) days of the end of the calendar month in which ZOLL failed to meet its Service Level Commitment; and (II) include in such request the nature, date and time of the Unexcused Downtime. If ZOLL is able to verify such Unexcused Downtime, such Service Credit will be applied to a future month's invoice for such SaaS, which is typically two (2) months later. Failure to submit a written request for Service Credit as provided in this Section will constitute a waiver of such Service Credit by Customer. The Service Credit set forth in this Section will be Customer’s sole and exclusive remedy for ZOLL failing to meet the Service Level Commitment for any SaaS in a given calendar month.
- Modifications. Notwithstanding anything to the contrary in the Agreement, ZOLL may revoke administrative rights, including database access rights, if the use of any such rights results in Downtime. Notwithstanding anything to the contrary in the Agreement, ZOLL may cease providing any SaaS upon at least six (6) months’ notice to Customer.
5. Customer Content
- Security. ZOLL will implement commercially reasonable security measures designed to prevent unlawful access to Customer Content by third parties.
- Customer Compliance. Although ZOLL will use commercially reasonable efforts to (I) maintain the integrity of the Customer Content, (II) back up the Customer Content and (III) to provide full and ongoing access to SaaS, loss of access to SaaS and loss of Customer Content may occur. Customer is solely responsible for maintaining any Customer Content that it requires for archival purposes, ongoing management of its operations or compliance with all records retention requirements applicable to it. Customer agrees that it is not relying on ZOLL to assist with determining the records maintenance or retention requirements applicable to it. ZOLL will not be responsible for any loss, corruption of or inaccessibility of the Customer Content due to interruption in SaaS or otherwise arising out of circumstances not within ZOLL’s control.
- Retention Period for Active Customer Content. Unless otherwise specified in the Agreement, ZOLL will store Customer Content, other than Inactive Customer Content as defined below (the “Active Customer Content”), in ZOLL’s working data set until the earlier of (I) with respect to RescueNet @Work, thirteen (13) months, and with respect to other SaaS, five (5) years or (II) the expiration or termination of this Agreement or the Order or SOW under which such Active Customer Content was stored (the “Active Retention Period”).
- Return, Destruction or Storage of Active Customer Content. Upon the expiration of the Active Retention Period, ZOLL will notify Customer in writing and will provide Customer the option, which Customer will exercise by informing ZOLL in writing, within thirty (30) days of receiving the notice, that either (I) Customer wishes to receive Active Customer Content in a database format determined by ZOLL in its sole and absolute discretion (a “Database”), or (II) Customer will pay ZOLL, at ZOLL’s then-current storage rates and upon ZOLL’s then-current terms and conditions, to continue to store the Active Customer Content. If Customer fails to exercise one of the foregoing options within such thirty (30)-day period, ZOLL will have the right to destroy the Active Customer Content.
- Inactive Customer Content. ZOLL may periodically identify Customer Content that has had no activity associated with it for at least one hundred eighty (180) days (“Inactive Customer Content”) and notify Customer in writing of its intent to remove the Inactive Customer Content from ZOLL’s working data set and destroy such data. However, Customer may request, in writing, within thirty (30) days of receiving such notice from ZOLL, that ZOLL provide a Database of the Inactive Customer Content or store, at ZOLL’s then-current storage rates and upon ZOLL’s then-current terms and conditions, such Inactive Customer Content. If Customer fails to exercise one of the foregoing options within such thirty (30)-day period, ZOLL will have the right to destroy the applicable Inactive Customer Content in its possession or under its control.
6. Additional Terms and Conditions
- ZOLL AR Boost. If an Order includes ZOLL AR Boost, including Insurance Discovery, Insurance Verifier, Demographic Verifier, Self-Pay Analyzer, Deductible Monitoring, Claims Status, Enhanced MBI Discovery, Prior Authorization Determination, Prior Authorization Submission, Benefits Verification, Patient Financial Responsibility or related products and services, either separately or as part of ZOLL Billing, RescueNet® Billing Pro, Packaged Services, Packaged Services Premium, AR Boost or another combination of products or services (collectively, “ZOLL AR Boost”), then Customer agrees the ZOLL AR Boost Addendum located at https://www.zolldata.com/legal will additionally govern and apply to such ZOLL AR Boost.
- TomTom. If an Order includes geographic databases, digital maps, software applications, dynamic spatial data and related materials (the “TomTom Products”) provided by TomTom, Inc., then Customer agrees the TomTom Addendum located at https://www.zolldata.com/legal will additionally govern and apply to such TomTom Products.
- NEMSIS Extracts. If an Order includes Standard NEMSIS Extract, Customer acknowledges that it is being provided with the Standard NEMSIS Data Extract for the purposes of data reporting to Customer’s specific state or states. While NEMSIS has established a standard set of reportable data elements, certain states may elect to collect data that is outside the scope of the documented NEMSIS Data Dictionary. Should Customer require such a plug-in to the NEMSIS Extract in order to meet these state requirements, Customer must purchase a state-specific NEMSIS Plug-In from ZOLL if and as available.
- ICC Codes. If an Order includes ICC Codes, Software provided to Customer under this Agreement contains information which is proprietary to and copyrighted by or licensed to International Code Council, Inc. (the “ICC Codes”). The portions of information copyrighted by or licensed to the International Code Council, Inc., have been obtained and reproduced with permission. The acronym ICC® and the ICC logo are federally protected trademarks and service marks of ICC. All other code titles are the trademarks and services marks of the International Code Council, Inc. Without advance written permission from the International Code Council, Inc., no part of the International Code Council, Inc.’s copyrighted or licensed material may be reproduced, distributed or transmitted in any form of by any means, including, without limitation, electronic, optical or mechanical means (by way of example and not limitation, photocopying, printing, or recording by or in an information storage retrieval system). For information on permission to copy the International Code Council, Inc. materials, please contact: Publications, 4051 West Flossmoor Road, Country Club Hills, IL 60478. Phone 1 888-422-7233 (ICC-SAFE).