Service Level Agreement for Better Outcomes Now

Last updated: June 28, 2024

This Service Level Agreement (“SLA”) applies to a customer who has paid for either a single-user or multi-user annual subscription plan to access and use the measurement-based care software application known as Better Outcomes Now (“BON”) in accordance with the terms and conditions of such customer’s Master Subscription and Software-As-A-Service Agreement (“SaaS Agreement”).

For purposes of this SLA, references to “You” or “Your” means a customer who has a paid annual subscription plan to access and use BON pursuant to the terms and conditions of Your SaaS Agreement entered between You and Dr. Barry L. Duncan, P.A. d/b/a Better Outcomes Now (“We” “Us” or “Our”).

DEFINITIONS

For purposes of this SLA, the following terms are given the below definitions.

“Applicable Month” means, for a calendar month in which a Service Credit (defined below) is owed, the number of days in the applicable month falling under a User Plan (defined below) for which a credit will be applied in the form of extending the duration of a User Plan by the period of time stated in the Service Credit.

“Applicable Monthly Service” means the total number of days in a calendar month, subject to the calendar month having been paid for under a User Plan.

“Business Days” means every day except Saturdays, Sundays, U.S. federal and state holidays, or a day on which banking institutions are authorized by law or executive action to close. U.S. federal holidays include New Year’s Day, Martin Luther King Day, Memorial Day, Juneteenth, 4^th of July, Labor Day, Thanksgiving day and Christmas day.

“Business Hours” means 9:00 a.m. to 5:00 p.m. Eastern Standard Time (EST) on Business Days.

“Deployment Minutes” means the total number of minutes in a calendar month, subject to the calendar month having been paid for under a User Plan.

“Downtime” means that the availability or performance of BON is less than the Monthly Percentage Uptime as defined and provided in this SLA for a Service Level (defined below). Downtime does not include any Scheduled Downtime or any performance or availability issues that arise due to any of the events identified under the “Exclusions” section of this SLA. Downtime is measured by minutes. A minute is considered unavailable if all continuous attempts (i.e., HTTP requests to perform one or more operations) to access or use BON throughout the minute either result in an Error Code or fail to return a response.

“Error Code” means a unique identifier that relates to a specific problem or issue within BON. If such an error occurs, a message will appear that displays a three-digit number (e.g., an HTTP status code in the 5xx range) and may include subject title for the code and/or be accompanied by language that briefly describes the problem or issue.

“Incident” means (i) any single event or (ii) any set of events that result in Downtime.

“Maximum Available Minutes” means, for a calendar month, the sum of all Deployment Minutes according to the total number of subscribed users paid for under a User Plan.

“Service Credit” means the percentage of an Applicable Monthly Service credited to You following Our claim approval.

“Service Level” means the performance metrics(s) stated in this SLA that We agree to meet for access to and use of BON.

“Scheduled Downtime” means periods of Downtime necessary to perform routine maintenance to BON such as, without limitation, patches, fixes, updates, upgrades, or other improvements or enhancements to the availability, operations, performance, functionality and/or security of BON. Service Credits do not apply to Scheduled Downtime.

“User Minutes” means the total number of minutes in a calendar month less any Downtime multiplied by the total number of users under a User Plan (defined below).

“User Plan” means Your paid annual subscription plan for You and any authorized users for whom You have paid a subscription fee to access and use BON pursuant and subject to the terms and conditions of Your SaaS Agreement.

MAINTENANCE OF BON

As a web-based software application, We periodically release updates, patches or other fixes to improve or enhance the availability, performance, operation, functionality and/or security of BON. We will use commercially reasonable efforts to perform maintenance activities during non-business hours on Business Days so that access to and use of BON will be uninterrupted during normal business hours during Business Days. If We reasonably foresee that the maintenance of BON will cause an interruption in service in excess of three (3) Business Days, We will provide thirty (30) days advance written notice. Our agreement to provide 30-days advance written notice does not apply to any unscheduled maintenance that We may have to perform as a result of any event that is beyond Our reasonable control or anticipation.

For any scheduled or unscheduled maintenance of BON, the member portal login webpage for BON will display a maintenance notice on the actual date(s) of maintenance.

SERVICE LEVEL MONTHLY UPTIME

Our Monthly Uptime Percentage for Our Service Level of BON is as follows:

• Less than 99.9% uptime in a calendar month: 10% Service Credit
• Less than 99.0% uptime in a calendar month: 25% Service Credit

As used here, “Monthly Uptime Percentage” is calculated by taking the Maximum Available Minutes in an Applicable Month less Downtime divided by the Maximum Available Minutes in that Applicable Month.

If We do not achieve and maintain either of the above stated Service Levels, You may be eligible for a Service Credit towards a portion of time in the Applicable Period in the form of credit that will extend the duration of Your User Plan by period of time stated in the Service Credit.

SERVICE CREDIT CLAIMS – REQUIREMENTS AND PROCESS

To gain the benefit of a Service Credit, You must submit a written claim to Our customer support within five (5) Business Days of the date that the Incident first occurred. For a claim to be valid, You must include all of the following in Your claim:

1. The name of Your BON account;
2. The date, time and duration of the Downtime;
3. Exact wording of all Error Codes You received including the three-digit number of the Error Code(s). You may include a copy of timestamped screenshot(s) of the Error Code(s) with Your claim;
4. A detailed description of the Incident and expected results;
5. A detailed description of what You did that resulted in the Incident that is capable of being reproduced by Us;
6. A detailed description of Your and/or Your affected users’ (as applicable) attempts to try to resolve the Incident at the time of occurrence; and,
7. As to multi-user plans only, the number of affected users.

As part of Our investigation, You understand and agree that We may share any or all information submitted with Your claim to Our technical support staff and/or our third-party service providers that support the availability, functionality, performance, operations and/or security of BON.

Upon Our receiving Your claim, subject to meeting the above stated claim requirements, Your compliance with the terms and conditions of Your SaaS Agreement and in consideration of any exclusions stated in this SLA, We will evaluate Your claim and any other reasonably necessary information We may need to determine if a Service Credit is owed to You. We will use commercially reasonable efforts to process valid claims during the subsequent month immediately following Our receipt of Your claim and within forty-five (45) days of receipt.

If We determine a Service Credit is owed to You, We will apply the Service Credit to Your User Plan, resulting in an extension to Your User Plan by the period of time stated in the Service Credit. Service Credits are Your sole and cumulative remedy and Our sole and cumulative liability under this SLA.

SERVICE CREDITS – EXCLUSIONS

This SLA and Our Service Levels do not apply to any performance or availability issues arising from any of the following:

1. Any event that is outside of Our reasonable control or anticipation as more fully described in Your SaaS Agreement;
2. Your or any of Your authorized users’ (if applicable) use of any third-party services, hardware, software, or other technologies not supplied, owned, or controlled by Us;
3. Your or any of Your authorized users’ (if applicable) misuse of BON after We informed You to modify Your misuse of BON, such as, without limitation, using the same account login credentials for multiple users in direct contravention of Our explicit instructions and requirements that You and each of Your authorized users (if applicable) must have individual and separate account login credentials
4. Any preview, beta or free trial versions of BON, unless We, in our sole discretion, decide otherwise and confirm Our decision to You in writing;
5. Your or any of Your authorized users’ (if applicable) failure to maintain the confidentiality and/or security of Your or any of their (if and as applicable) respective BON account login credentials that result in an unauthorized use of Your or any of their (if and as applicable) respective login credentials to access or use BON;
6. Any unauthorized action or inaction when required from You or from any of Your authorized users (if applicable), or if any of Your employees, agents, representatives, contractors or vendors gain access to BON, which may include any of BON’s supporting databases, servers or systems, by means of using Your or any of Your authorized users’ passwords, computers, mobile devices, or associated equipment, or that otherwise results from Your or any of Your authorized users’ failure to follow appropriate security practices;
7. Any use by You or by any of Your authorized users (if applicable) of BON in a manner inconsistent with the features or functionality of BON, such as and without limitation, attempts to perform unsupported operations or operations inconsistent with Our published instructions;
8. Your or any of Your authorized users’ (if applicable) access to or use of BON in a manner inconsistent with or not expressly authorized under Your SaaS Agreement;
9. Your or any of Your authorized users’ (if applicable) faulty input or argumentative request(s), such as, without limitation, access to data or reports that do not exist or misuse of a functionality or feature of BON;
10. Your or any of Your authorized users’ (if applicable) intentional or accidental action or inaction that results in a deletion or loss of data from Your or any of their respective BON user accounts (if and as applicable). While one part of Our security measures includes performing back-ups of BON, You are responsible for implementing this same security measure in accordance with acceptable industry standard data protection and security measures applicable to You. We are not responsible or liable for the deletion or loss of any data resulting from Your or any of Your authorized user’s (if applicable) own action or inactions;
11. Any user licenses reserved, but not yet paid for, at the time of an Incident; or,
12. Any event arising from any maintenance of, or other issues concerning, Your or any of Your authorized users’ (if applicable) own computer(s) and/or related equipment, including, without limitation, related software, hardware, networks, systems, servers, internet connectivity, bandwidth, or other technologies supporting or used in connection with such computers(s) and/or related equipment.

CHANGES TO THIS SLA

The terms of this SLA will be fixed for the duration of the initial term of Your SaaS Agreement. If a subscription is renewed, the version of this SLA that is current at the time of renewal will apply throughout Your renewal term. You can review the most current version of this SLA by visiting this webpage. If changes are made to this SLA, the date of the updated version will be displayed in “Last Updated” located at the top of this webpage.