Content means Customer’s content and data used with Navigo’s products and services stored in Navigo’s online environment.
Initial Subscription Term means the first term for which Navigo will provide the Subscription Services to Customer, as indicated on an Order.
Order means a Navigo sales order or statement of work executed by Navigo and Customer that is made pursuant to this Agreement.
Renewal Subscription Term means any Subscription Services term following the Initial Subscription Term, as specified in Section 2.5.
Navigo Technology means Navigo’s proprietary technology and intellectual property (whether owned by Navigo or licensed to Navigo from a third party), including, without limitation, the Services, software, user interface designs, architecture, class libraries, Navigo's third parties' content, documentation, network designs, know-how, and trade secrets, together with any modifications or derivatives of any of the foregoing.
Subscription Services means the online, standard Web- based application services made generally available by Navigo on a subscription basis and identified on an Order. Service(s) means the Subscription Services or any other services identified on an Order.
Subscription Term means, as applicable, the Initial Subscription Term, or any Renewal Subscription Term.
Users means, except as otherwise defined in the applicable Order, individuals with a profile and credentials to log on to the Subscription Services. The maximum number of Users of the Services is as set forth in the applicable Order; if Customer wishes to add additional Users, these subscriptions must be purchased in advance of use. Users may only be Customer’s employees and independent contractors, and may only use the Services in connection with Customer’s products or services.
Navigo will provide Customer the Subscription Services set forth on each Order, and hereby grants Customer the right to use the Subscription Services in accordance with the terms of this Agreement. Customer may view important information concerning the rights and restrictions associated with each Order on the Policies and Entitlements Page. Customer understands that the Subscription Services are provided as software-as-a-service and are not customised to Customer’s unique requirements. Accordingly, Customer agrees that throughout the Subscription Term Navigo may make regular and sometimes substantial upgrades, changes and improvements to the Subscription Service in order to enhance the Subscription Service generally and/or remedy any issues with the Subscription Service.
Navigo maintains self-service, password-protected support websites, which are available 24x7. Each site contains updated customer support information. Navigo Customer Support is provided in English only. Customer Support hours, support telephone numbers, scheduled maintenance windows, and other provisions regarding support of the Subscription Services are posted on the support website and/or in the relevant support policy. Navigo may change its scheduled maintenance periods, by providing 30-day advance email notification. If necessary but unscheduled maintenance is required, Navigo will use reasonable efforts to issue a timely email warning.
Navigo or its subcontractors will monitor the Subscription Services, on a 7 x 24 x 365 basis, for correct operation, capacity and performance. When any faulty operation, capacity or performance of the Subscription Services is identified and verified by Navigo, Navigo will endeavour to correct any such issues and restore normal operation of the Subscription Services.
Navigo is committed to protecting the personal information that Navigo receives from Customer. Navigo will take commercially reasonable and appropriate technical and organizational measures to protect Customer’s information against unauthorized access, accidental loss or damage and unauthorised destruction. The security provided by Navigo shall be in accordance with good industry practices relating to protection of the types of data typically utilized in the Subscription Services by Navigo customers. Nevertheless, Customer recognizes and agrees that internet data transmission carries inherent security risks and that as a result Navigo cannot guarantee that any Content Customer stores or transmits through the Service will not be subject to malicious unauthorized access by others or that others will not gain unauthorized access to the Subscription Service.
The Initial Subscription Term for the Subscription Services will be specified on an Order. The Subscription Services will renew automatically for additional Renewal Subscription Terms, each of the same duration as the Initial Subscription Term, unless Customer notifies Navigo in writing at least thirty (30) days prior to the end of the then-current Subscription Term that Customer has elected not to renew.
Navigo may provide related Services (including consulting and training Services) under the terms of this Agreement, as agreed to in writing by the parties and specified on one or more separately executed Orders made subject to this Agreement. Any deliverables provided by Navigo in connection with such Services shall only be used in connection with Customer’s authorized use of the Subscription Services. Unless otherwise expressly agreed in writing by the parties, such Services shall be provided on a time and materials basis at the daily rates specified in the Order.
Except for the rights expressly granted herein:
(i) all right, title and interest in and to Content will remain solely with Customer; and
(ii) all right, title and interest in and to Navigo Technology and the Services will remain solely with Navigo. Navigo and Customer each agree not to derive, or attempt to derive, directly or indirectly, source code or other trade secrets from the other party, except and only to the extent expressly permitted by, and in accordance with, applicable law. Customer hereby grants to Navigo the right to access and use the Content, solely as reasonably necessary to provide the Services. If Customer provides Navigo with any suggestions, enhancement requests, recommendations or other feedback regarding the Services, Customer also grants to Navigo a perpetual, irrevocable, worldwide, royalty-free, fully paid up, transferable and sub-licensable license to use and to incorporate Customer’s feedback into the Services.
Navigo represents and warrants that
(i) it has the legal right and authority to enter into this Agreement and perform its obligations hereunder,
(ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable laws or regulations, or cause a breach of any of Navigo’s agreements with any third parties;
(iii) the Subscription Services will conform in all material respects with Navigo’s standard end user documentation for such Subscription Services;
(iv) Navigo will make commercially reasonable efforts to prevent the transmission of any virus, worm, Trojan horse, time bomb, or other malicious or harmful code by the Subscription Services; and
(v) Navigo complies with the EU Safe Harbor framework as set forth by the United States Department of Commerce regarding the collection, use, and retention of data. In the event of a breach of the warranties set forth in this Section 4.1, Customer’s sole and exclusive remedy will be that Navigo shall, upon receipt of written notice of breach, make diligent efforts to become compliant with the warranties set forth in this Section 4.1, and if Navigo does not do so within a reasonable period of time, Customer will be entitled to terminate this Agreement pursuant to Section 10.2.
Navigo warrants that the Subscription Service(s) will perform in accordance with and subject to the Navigo Service Level Agreement (“SLA”), which is attached hereto as Exhibit 1. The SLA states Customer’s sole and exclusive remedy for any breach of this warranty.
Except for the express warranties set forth in this section 4, the services are provided on an "As is" and “as available” basis, and customer’s use of the services is at customer’s own risk. Navigo does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Navigo does not warrant that the services will be uninterrupted, error-free, or completely secure.
Navigo does not and cannot control the flow of data to or from Navigo’s network and other portions of the internet, and accordingly Navigo disclaims any and all liability resulting from or related to a failure in the performance of internet services provided or controlled by a third party.
Customer represents and warrants that
(i) Customer has the legal right and authority, and will continue to own or maintain the legal right and authority, during the term of this Agreement, to place and use any Content as contemplated under this Agreement; and
(ii) Customer’s performance of Customer’s obligations, and all use of the Services by Customer and Customer’s Users, will not violate any applicable laws, regulations (including without limitation those related to export, privacy, security, and the collection, use, transmission and retention of data within or between any jurisdiction(s)), or the prohibitions in Section 5.3, or cause a breach of any of Customer’s agreements with any third parties.
Customer acknowledges that it is responsible for all Content, that Navigo exercises no control whatsoever over any data passing through Customer’s site(s) (including any Content), and that it is Customer’s sole responsibility to ensure that Customer and Customer’s Users either own all Content or control the rights thereto and have received all necessary consents to use, process, transmit or display such Content. Navigo provides only storage and delivery services for Content, and is not the publisher of Content. Customer shall act as the data controller for any and all Content. Navigo shall act as the data processor on behalf of Customer with respect to such Content and shall carry out the instructions of Customer with regard to the collection, processing and protection of such Content in accordance with this Agreement. For the avoidance of doubt, Customer has the right to retrieve Customer’s Content at any time during any Subscription Term (or following termination of this Agreement, pursuant to the provisions of Section 10.3(a)).
Customer shall not, and shall procure that its Users do not, use the Subscription Services to perform activities that
(i) are unlawful including without limitation any violation of all then- current export and import laws and regulations of the United States and such other governments as are applicable to any software, application services or Navigo Technology that Customer may receive from Navigo,
(ii) are harmful to or interfere with any third-party use of the Subscription Services, the network, systems and/or facilities (“Infrastructure”) of Navigo or the Infrastructure of any other provider;
(iii) result in the storage or publication of threatening, infringing or offensive material, or constitute Spam/E-mail/Usenet abuse, a security risk or a violation of any individual’s privacy,
(iv) constitute unlawful collection, use, processing or transmission of personal data, or (v) are intended to circumvent the security measures of Navigo or any third party.
If Customer becomes aware of any breach of the foregoing, Customer will notify Navigo and remedy the situation immediately, including, if necessary, limiting, suspending or terminating any relevant User’s access to the Subscription Services. In the event of a breach or suspected breach of the any of the foregoing prohibitions, Navigo reserves the right to suspend Customer’s Services, if reasonably necessary to prevent harm to Navigo, Customer, other customers, and/or Navigo’s partners, vendors and suppliers with such notice as may be reasonable in the context of the prospective harm.
Except as expressly permitted on an Order, Customer may not sell, rent or lease the Services provided hereunder to others, in any way whatsoever, including without limitation, using the Services for the purpose of operating a service bureau or application service provider, or other revenue generating activities.
Customer will pay to Navigo the fees and charges set forth on the Orders. Except as otherwise expressly stated in an Order, all amounts are due within 14 days of Customer’s receipt of Navigo’s invoice. Any payment by credit card requires Navigo’s pre- approval and is payable upon signature of the Order. Except as otherwise expressly set forth herein, all payments are non-refundable.
Any late payment will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
Customer will reimburse Navigo for all sales, use, excise, and property taxes, value-added tax (VAT), goods and services tax (GST), or other taxes, levies, duties or withholdings Navigo is required to collect or remit to applicable tax authorities (except for any taxes based on Navigo’s net income). If Customer is required by any applicable law to deduct or withhold amounts otherwise payable to Navigo hereunder, Customer will pay the required amount to the relevant governmental authority, provide Navigo with an official receipt or certified copy or other documentation acceptable to Navigo evidencing the payment, and pay to Navigo, in addition to the payment to which Navigo is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Navigo free and clear of all taxes equals the full amount Navigo would have received had no such deduction or withholding been required.
In no event shall either party be liable or responsible to the other party for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods or services, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.
A party’s entire liability to the other party whether in contract, tort, or otherwise, relating to the services, any product, or this agreement, shall in no circumstances exceed the amounts actually paid by customer for the services during the twelve (12) month period preceding the event giving rise to the claim.
The waivers and limitations of liability in this section 7 shall not apply to any of the following: customer’s payment obligations under this agreement; damages arising out of a party’s breach of section 3 (intellectual property), section 5.3 (prohibited activities) or section 9 (confidentiality); a party’s obligations under section 8 (duty to defend); damages arising out of a party’s fraud, gross negligence or willful misconduct, or any personal injury or death to the extent caused by a party; or any loss or damage for which liability cannot be limited or excluded by applicable law.
Navigo shall defend or settle, at its expense, any claim or action (“Claim”) against Customer that
(a) the Subscription Services, as made available by Navigo to Customer under this Agreement and used within the scope of this Agreement, infringe any copyright, trade secret, patent or other proprietary right, or
(b) is a result of personal injury caused by the negligence or willful misconduct of Navigo; and Navigo shall pay all final judgment awards against Customer or settlement costs in connection with such Claim.
Customer shall defend or settle, at Customer’s expense, any Claim brought against Navigo that
(a) any Content, as provided by Customer to Navigo under this Agreement and used within the scope of this Agreement, infringes any copyright, trade secret, patent or other proprietary right,
(b) is a result of personal injury or death caused by Customer’s negligence or willful misconduct, or
(c) is a result of any violation of or failure to comply with Section 5; and Customer shall pay all final judgment awards against Navigo or settlement costs in connection with such Claim.
As a condition to the defense and settlement obligations of the parties in this Section 8, a party must provide the defending party prompt notice of any Claim and shall cooperate in all reasonable respects with the defending party in connection with any such Claim. The defending party shall be solely entitled to control the handling of any such Claim and to defend or settle any such Claim, in its sole discretion, with counsel of its own choosing.
With respect to any Subscription Services that are found to be infringing, or in Navigo’s opinion are likely to be found infringing, Navigo may, at its option,
(a) obtain the right for Customer to continue using the Subscription Services;
(b) replace or modify the Subscription Services so they are no longer infringing but still provide substantially similar functionality, or
(c) terminate the applicable Subscription Services. In the event of such termination, Navigo will refund any subscription fees pre-paid by Customer for the terminated Subscription Services, pro-rated for the remainder of Customer’s Subscription Term after the effective date of termination.
The foregoing obligations of Navigo shall not apply to any infringement Claim to the extent arising from
(i) Customer’s use of the Services in a manner other than in accordance with this Agreement;
(ii) Customer’s use of the Services in conjunction with Content or data where use with such Content or data gave rise to the infringement claim; and/or
(iii) Customer’s use of the Service(s) with other software, hardware or services, where use with such other software, hardware or services gave rise to the infringement Claim.
The foregoing states Navigo’s entire obligation and Customer’s sole and exclusive remedy for any claim of infringement of any third party copyright, trade secret, patent or other proprietary right.
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, the non-public portions of the Navigo Technology, the terms and conditions of this Agreement, and all Content. A party receiving any Confidential Information (“Recipient”) from the other (“Discloser”) will use at least the same care to prevent disclosure and unauthorized use of such information as Recipient uses with respect to its own confidential and proprietary information of like importance under similar circumstances, which will not be less than reasonable care. Recipient will not disclose Confidential Information to any third parties, provided that Recipient may disclose the Confidential Information to its employees and contractors who need to know such information and who are bound in writing by restrictions regarding disclosure and use of such Confidential Information comparable to those set forth herein. Recipient will not use any Confidential Information for any purpose other than to exercise its rights and perform its obligations under this Agreement. The foregoing restrictions on disclosure and use will not apply with respect to any Confidential Information to the extent such Confidential Information:
(a) was or becomes publicly known through no wrongful act or omission of Recipient;
(b) was rightfully known by Recipient before receipt from Discloser;
(c) is independently developed by Recipient (i.e., without the use of or reference to the Confidential Information of the Discloser); or
(d) becomes rightfully known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information.
Recipient may disclose Confidential Information to the extent Recipient is legally compelled to disclose such Confidential Information, provided, however, that prior to any such compelled disclosure, Recipient will give Discloser reasonable advance notice of any such disclosure and will cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. Navigo may refer to Customer by name in Navigo’s mandatory filings with securities authorities and regulatory bodies, and in associated communications with Navigo’s investors.
Neither party will be liable to the other for any termination or expiration of any Services or this Agreement in accordance with its terms.
Either party may terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching party.
Upon the effective date of termination of this Agreement:
(a) Navigo will immediately cease providing the Services. On Customer’s request, at any time during the thirty (30) day period following the effective date of termination, Navigo will return to Customer all Content, in its native format (or in another format, if mutually agreed by Customer and Navigo, which may require Customer to pay additional fees); and after the expiration of the foregoing thirty (30) day period, Navigo will delete any Content and will confirm such deletion upon Customer request;
(b) any and all of Customer’s payment obligations under this Agreement for the Services provided through the effective date of termination will immediately become due; and
(c) In the event of termination for cause by Customer pursuant to Section 10.2 or termination for Chronic Problems as provided in Exhibit 1, Navigo will refund any subscription fees pre-paid by Customer, pro-rated for the remainder of Customer’s Subscription Term after the effective date of termination.
The obligations of the parties under this Agreement, which by their nature would continue beyond termination, cancellation, or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
Governing Law. This Agreement will be governed by and construed according to the laws of the State of Victoria, Australia and the Parties submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia. To the extent not expressly prohibited by any applicable law, the United Nations Convention on Contracts for the International Sale of Goods and all international and domestic legislative or other implementations of such Convention will not apply to this Agreement.
Severability. Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
Publicity. Promptly after the Effective Date, the parties will cooperate reasonably to issue a mutually acceptable press release announcing Customer’s selection of Navigo. Following go-live of the production environment of the Subscription Services ordered hereunder, Customer agrees that Navigo may use Customer’s name in Navigo’s customer lists, and, at Navigo’s request (i) Customer agrees to be available as a customer reference for reference calls or onsite visits, and/or to present at Navigo public events, as approved by mutual agreement of the parties; and (ii) the parties will cooperate reasonably to prepare a mutually acceptable and approved “Success Story/Case Study” about Customer’s use of Navigo’s products and services, which may be used and made publicly available by Navigo for marketing purposes.
Assignment. Neither party may assign this Agreement either in whole or in part without the prior written consent of the other party, except that either party may assign this Agreement to a successor as the result of an acquisition, merger or other such change of control either in whole or in part of a party's business. Navigo may also delegate the performance of certain Services to third parties, provided Navigo controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
Notices. Any notice hereunder will be in writing and delivered in person or by courier, sent by confirmed facsimile (fax), or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth on the Order or to such other address as given in accordance with this Section. If notice is given in person, by courier or by fax, it will be effective upon receipt; and if notice is given by mail, it will be effective five (5) business days after deposit in the mail. Any notice to Navigo shall be copied at the same time in writing to: Navigo (Attn: Legal Department), PO Box 4235 Ringwood, VIC, 3134, email: firstname.lastname@example.org
Remedies. All rights and remedies hereunder are cumulative, may be exercised singularly or concurrently and will not be deemed exclusive except as expressly provided herein. If any legal action is brought to enforce any obligations hereunder, the prevailing party will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control.
Usage. Navigo may, from time to time and at its own expense, review Customer’s usage of the Services to determine Customer’s compliance with the terms of each Order. Navigo will promptly notify Customer if Customer’s usage of the Services exceeds Customer’s subscribed entitlements. Customer agrees to pay for any additional subscriptions required for Customer’s actual usage.
Entire Agreement. This Agreement, including any Order and all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Customer acknowledges that any Orders made hereunder are not reliant, or contingent upon, the delivery, or promise of delivery, of any future functionality, features, products or services. The terms set forth in this Agreement and any Order will control in the event that there are any different or additional terms set forth on any purchase order or other form that Customer submits. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
“Available” or “Availability” shall mean that the Subscription Services are responsive and available for use at the URL specified by Navigo. Availability is measured 24x7, on a calendar monthly basis.
Unavailability does not mean an inability to connect to the Subscription Services due to (i) a failure between Customer’s computer(s) and the Internet; (ii) factors outside of Navigo’s reasonable control; (iii) any action or inaction of Customer or a User; or (iv) scheduled maintenance periods and necessary but unscheduled maintenance of which Customer has reasonable notice.
“Category 1” shall mean that the Subscription Services are not Available (i.e. a “system down” support issue).
“Category 2” shall mean that an entire application module (as defined in the standard end user documentation for the Subscription Services) of the Subscription Services is not Available.
“Report” shall mean submitting Customer’s issue via the electronic interface to Navigo’s support tracking system, or in a telephonic conversation with a Navigo support representative during a time period when support is available to Customer, based on the edition of the Subscription Services that Customer has purchased
“Resolve” or “Resolution” shall mean that Navigo has tested the affected module(s), and has notified Customer electronically or telephonically that the module is accessible and usable.
“Respond” or “Response” shall mean an electronic or telephonic notification to Customer, confirming that Navigo has logged Customer’s issue in Navigo's support tracking system.
“Service Credit” shall mean a credit calculated in accordance with Section 3 below. A Service Credit shall be issued by discounting Customer’s next payment for the Subscription Services by the amount of the Service Credit.
Navigo warrants that support for the Subscription Services shall be provided consistent with the following Service Level Agreement (SLA):
Availability SLA. Navigo’s target is 100% Availability of the Subscription Services. If Customer experiences a Category 1 issue or issues resulting in less than 99.5% Availability, Customer is eligible for a Service Credit as set forth in Section 3.1.
Response and Resolution SLA. For all Category 2 issues, Navigo commits to Respond to the issue within one (1) hour, and to Resolve the issue within twenty-four (24) hours. If Navigo does not Respond to and/or Resolve a Category 2 issue within the defined time interval, Customer is eligible for a Service Credit as set forth in Section 3.2.
Category 1 / Unavailability. In the event Customer experiences less than 99.5% Availability in one calendar month, Customer may request a Service Credit from Navigo. The amount of the Service Credit shall be calculated by multiplying Customer’s pro-rated monthly Subscription Services fees for said Subscription Services for the calendar month in which the Service Credit was incurred, by the percentage shown in the table below that corresponds to the actual Availability of said Subscription Services during that month.
|Availability Percentage||Percentage Credit|
|99% or over, but below 99.5%||25%|
|95% or over but below 99%||50%|
Category 2. In the event that Customer reports a Category 2 issue, and Navigo does not (i) Respond within the defined Response time, or (ii) Resolve the issue within the defined Resolution time, Customer may request a Service Credit from Navigo. The Service Credit shall be calculated by multiplying Customer’s monthly Subscription Services fees for the affected Subscription Services for the calendar month in which the Service Credit was incurred by three percent (3%). Customer may request an additional 3% Service Credit for each additional, consecutive 24-hour period during which Navigo does not either Respond to Customer or Resolve the issue
This Service Level Agreement applies only to Customer’s production environment of the Subscription Services, and not to any development, staging, testing, QA or other non-production environment. Response and Resolution shall be measured from the time stamp recorded in Navigo’s support tracking system at the time that the issue is submitted electronically by Customer (or, if Customer contacts Navigo telephonically, the time at which Navigo creates the case describing the issue in the system). Response and Resolution times are calculated only during time periods when support is available to Customer, based on the edition of the Subscription Services that Customer has purchased.
Time periods during which Navigo is awaiting a response or information requested from Customer shall not be counted in Resolution time calculations. Customer may specify the category associated with an issue when Customer reports the issue, but Navigo may change the category after investigation of the issue. The Service Level Agreement applies to the Subscription Services and all published Navigo APIs, but not to any customisation, developed applications or extensions.
Customer Must Request Service Credit. If Customer believes Customer is eligible for a Service Credit for any given calendar month, or has a right to terminate as described in Section 3.6, Customer must notify Navigo in writing within 5 business days from the end of such month in order to receive a Service Credit or exercise Customer’s right of termination.
Maximum Service Credit. Customer’s aggregate Service Credits in any single calendar month may not exceed Customer’s monthly Subscription Services fees for the calendar month in which the Service Credit(s) were incurred.
Termination Option for Chronic Problems. If, in each of three (3) consecutive months, Customer experiences less than 99.5% Availability, and/or Customer accrues Service Credits for Category 2 issues totaling twenty-five percent (25%) or more ofCustomer’s monthly Subscription Service fees for each of the three (3) months, this Agreement may be terminated without penalty. Such termination will be effective thirty (30) days after receipt of written notice of termination. Upon termination, Navigo will refund any subscription fees pre-paid by Customer, pro-rated for the remainder of Customer’s Subscription Term after the effective date of termination.
This SLA states Customer’s sole and exclusive remedy for any failure by Navigo to make the Services Available.