In conjunction with Your purchase of a subscription for the SaaS Offering, You agree to these Supplemental Terms for the SaaS Offering which are hereby incorporated into the End User License and Services Agreement between Ivanti and You (the "Agreement"). Ivanti may revise these Supplemental Terms for the SaaS Offering from time to time by publishing such updates at https://www.ivanti.com/company/legal/saas. In the event that Ivanti makes any revision that includes a material change to these Supplemental Terms for the SaaS Offering during your subscription term (“Change”), Ivanti shall give you notice of such Change. You shall have thirty (30) days to object to any such Change by written notice to Ivanti, otherwise you agree to accept the Change and incorporate any such Change into the Agreement. If you reject the Change on a reasonable basis, the Parties shall work together in good faith to come to a mutual resolution of the issues. Capitalized terms not defined herein shall have the meaning set forth in the Agreement.
1. DEFINTIONS
1.1 “Availability Commitment” is defined in Section 5.1, below.
1.2 “Credit” means 2% of Monthly Subscription Fees for each .1% below the Availability Commitment, not to exceed 100% of the Monthly Subscription Fees.
1.3 “Downtime” means Total Minutes in the Month during which the SaaS Offering is not available, except for Excluded Downtimes.
1.4 “Excluded Downtime” means the Total Minutes in the Month attributable to (i) Planned Maintenance Downtime for which You have been notified in advance; (ii) unavailability caused by factors outside of Ivanti’s control, such as unpredictable or unforeseeable events that could not have been avoided even if reasonable care had been exercised; (iii) unavailability caused by failure of Your infrastructure or connectivity, computer and telecommunications failures; (iv) unavailability caused by Your or a third party's hardware or software; (v) unavailability caused by acts or omissions by You, Your employees, agents, or contractors, or anyone gaining access to the SaaS Offering by means of Your passwords or equipment; (vi) Your failure to modify Your use of the SaaS Offering after being advised to do so; and/or (vii) degradation in any integrations to the SaaS Offering.
1.5 “Month” means a calendar month.
1.6 “Monthly Subscription Fees” means one-twelfth (1/12) of the annual subscription fees paid or payable for the applicable SaaS Offering (i.e., the particular SaaS Offering that did not meet the Availability Commitment).
1.7 “Monthly Uptime Percentage” is calculated and defined as ((Total Minutes in the Month – Excluded Downtime – Downtime)/(Total Minutes in the Month – Excluded Downtime))*100.
1.8 “Planned Maintenance Downtime” means the time during which the SaaS Offering is unavailable so that Ivanti or its hosting provider can perform maintenance and upgrades.
1.9 “Total Minutes in the Month” means the total minutes in an applicable Month, which is calculated by multiplying 60 (number of minutes in an hour) by 24 (number of hours in a day) and then multiplying that total by the number of days during the appliable Month.
2. CUSTOMER DATA.
2.1 Responsibility for Customer Data and Security. You are responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other access protocols required in order to access the SaaS Offering and are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. You shall procure all rights and privileges to obtain and transfer Customer Data to Ivanti under the terms of the Agreement. Your provision of such Customer Data to Ivanti shall be in compliance with all applicable laws and regulations, including but not limited to all privacy laws and regulations. You may not, and shall ensure Your Users do not, submit the following types of information to the SaaS Offering: (i) government identification numbers or financial account numbers associated with individual persons (e.g. U.S. Social Security numbers, national insurance numbers, driver's license numbers, or personal credit card or banking account numbers), (ii) medical records or health care claim information associated with individuals, including claims for payment or reimbursement for any type of medical care for an individual, (iii) information regulated under the International Traffic in Arms Regulations, (iv) technical data restricted under applicable laws, and (v) data designated as “sensitive” or “special category” or the like requiring extra protective measures under the applicable data protection laws and regulations without the express written consent of Ivanti. You agree that the use of any such Customer Data is at Your discretion and incidental to the use of the SaaS Offering. You represent and warrant that You own or otherwise have sufficient rights or consents to grant Ivanti access to and use of the Customer Data in accordance with the terms of the Agreement.
2.2 License. You hereby grant to Ivanti a royalty-free, fully-paid, non-exclusive, non-transferable, worldwide right and license to use Customer Data (i) during the Initial Term and any applicable Renewal Term of the Agreement (collectively, the “Term”), for the limited purpose of performing Ivanti's obligations under the Agreement, and (ii) during and after the Term, as provided in Section 3.4 below.
2.3 Data Analyses. Notwithstanding anything to the contrary, You agree that Ivanti may use Customer Data to create analyses utilizing Customer Data and information derived from Your use of the SaaS Offering, as set forth below (“Analyses”). Analyses will de-identify and aggregate information and will be owned by Ivanti. Analyses may be used for the following purposes: (i) product improvement (including product features and functionality, workflows and user interfaces) and development of new Ivanti products and services, (ii) improving resource allocation and support, (iii) internal demand planning, (iv) training and developing machine learning algorithms, (v) improving product performance, (vi) verification of security and data integrity, (vii) identification of industry trends and developments, (viii) developing and recommending insights to You and other customers; (viii) create anonymous profiles; (ix) creation of indices and anonymous benchmarking; and/or (x) for generally improving Ivanti’s products and services.
2.4 Location. During the Term, You may request that all Customer Data and Your instance of the SaaS Offering be moved to a different hosting location offered by Ivanti for valid business purposes. Any such migration shall be accompanied by a fee of no less than twenty-five percent (25%) of the SaaS Offering for the Term.
2.5 Data Center Linkage. During the Term, You may provide instruction to Ivanti to link the Ivanti data centers where Ivanti is hosting Your data. By providing this instruction, You understand that, while the location of your SaaS Offering instance will remain in its designated hosting location, linking of the data centers shall result in cross-border transfer of Your data which may involve processing of such data by some or all of Ivanti’s sub-processors listed at https://www.ivanti.com/company/legal/ivanti-subprocessors, including subsequent Support and Maintenance Services.
3. AVAILABILITY AND SERVICE LEVEL CREDITS.
3.1 Availability. Monthly Uptime Percentage will be at least 99.9% (the “Availability Commitment”).
3.2 Reporting. If You believe Ivanti has not met the Monthly Uptime Percentage, You shall notify Ivanti upon discovery of the unavailability so that Ivanti can confirm and determine the cause of the unavailability. As part of the notification, You shall provide (i) Your name and contact information; (ii) beginning time of the outage; (iii) a description of the characteristics of the outage; (iv) end user location; (v) URL(s) affected; (vi) the internet service provider used to access the SaaS Offering; (vii) network traceroutes; and (viii) any attempts You made to resolve the outage.
3.3 Service Credits. If Ivanti fails to meet the Availability Commitment for a particular Month, Your sole and exclusive remedy shall be to claim a Credit, which may only (i) be used to extend the SaaS Offering at the end of the applicable subscription term, or (ii) be applied to a future invoice relating to the SaaS Offering that did not meet the Availability Commitment Claims for a Credit must be made in good faith and through a documented submission of a support case within five (5) business days after the end of the relevant Month in which Ivanti did not meet the Availability Commitment for the SaaS Offering. Within thirty (30) days of Your claim for a Credit, Ivanti will either deny the request or issue a credit memo acknowledging the credit or extension. The terms of this section relating to Credits constitute a genuine pre-estimate of the loss or damage that You might suffer as a result of any failure to meet the Availability SLA for the SaaS Offering and are adequate compensation for any loss or damage caused by any failure to meet the Availability SLA for the SaaS Offering. Availability will be calculated using Ivanti’s system logs and other records.
3.4 Termination. If the Monthly Uptime Percentage of the SaaS Offering is less than 98.0% for three (3) consecutive months, You may terminate the SaaS Offering and receive a pro rata refund of any prepaid but unused SaaS Offering fees.
4. TECHNICAL INFORMATION. Details pertaining to the technical aspects of each SaaS Offering can be found at https://forums.ivanti.com/s/article/SaaS-Offering-Technical-Details.
5. SURVIVAL. The provisions of Sections 2 and 3 will survive the termination of these Supplemental Terms for the SaaS Offering.