Software As A Service Appendix

1. Definitions.

1.1 "Actual Availability” means Total Scheduled Availability minus Downtime.

1.2 “Downtime” means the time that users of the SaaS Services are not able to (1) access the SaaS Services, (2) perform ordinary functions to use or receive SaaS Services in accordance with the specifications or documentation for those SaaS Services, or (3) use the SaaS Services for normal business operations due to failure, malfunction or delay. Downtime does not include any unavailability of the SaaS Services due to System Maintenance.

1.3 “Output” means any content, information, reports, documents, or other materials provided or made accessible by Provider to Discord for download or export from the SaaS Services, excluding any Deliverables or Discord Data.

1.4 “Professional Services" means all services specified or provided under a Statement of Work, excluding SaaS Services.

1.5 “SaaS Services” means the software as a service, cloud, or other hosted software services specified or provided under a SOW, including all of software, APIs, documentation, and other systems made available by Provider to Discord or as necessary for access to and use of those services.

1.6 “Service Level Agreement” or “SLA” means the service level agreement that governs a SaaS Service, as detailed in Section 6or as included with any SOW.

1.7 “System Availability” will be calculated on a monthly basis using the following formula: [(Actual Availability divided by Total Scheduled Availability) multiplied by 100].

1.8 “System Maintenance” means time that the SaaS Services are not accessible to Discord due to maintenance, including for maintenance and upgrading of the software and hardware used by Provider to provide the SaaS Services. System Maintenance includes scheduled maintenance and unscheduled, emergency maintenance.

1.9 “Target Availability” means 100% System Availability over one-month periods, excluding any System Maintenance.

1.10 “Total Scheduled Availability” means 7 days per week, 24 hours per day, excluding System Maintenance to the extent such System Maintenance is consistent with Section 6(a)(ii) of this Appendix.

1.11 “Users” means anyone that Discord allows to use its accounts for the SaaS Services, who may include (a) employees, advisors and contractors of Discord and its affiliates and (b) others if permitted in this MSA or SOW.

1.12 All Professional Services and SaaS Services are included in Services and Work Product, as defined in the MSA and as applicable. 

1.13 Any capitalized terms used but not defined in this Appendix have the meanings given to them in the MSA.

2. SaaS Services. 

2.1 SOW. Each SOW will specify the SaaS Services that Provider will make available to Discord and, if applicable, any Professional Services it will perform in connection to the SaaS Services. 

2.2 Obligation. Provider will provide SaaS Services according to the applicable SOW, including any configuration and implementation requirements.  In addition to any terms in the SOW, Provider will ensure the SaaS Services meets the performance standards, terms, and conditions described in the Service Level terms in Section 6 of this Appendix (“Service Level Terms”).  In addition to the SaaS Services, Provider will provide maintenance and support as described in Section 6 of this Appendix. 

2.3 License.  Notwithstanding anything to the contrary in the MSA, the following license terms apply with regard to SaaS Services.

(a) SaaS Services.  Provider grants to Discord and its Users during the term of the applicable SOW, a non-exclusive, worldwide, royalty-free, fully paid-up, unlimited, enterprise-wide license to access and use the SaaS Services, with the right to grant sublicenses to any third party for such third party to provide services for Discord.

(b) Output.  Provider grants to Discord a non-exclusive, worldwide, royalty-free, fully paid-up, enterprise-wide, perpetual, irrevocable license to use the Output, with the right to grant sublicenses to any third party for such third party to perform the services for Discord.

(c) Restrictions.  Discord will not and will not permit anyone else to: (i) sell, sublicense, distribute or rent the SaaS Service (in whole or part), grant non-Users access to the SaaS Service or use the SaaS Service to provide a hosted or managed service to others, (ii) reverse engineer, decompile or seek to access the source code of the SaaS Service, except to the extent these restrictions are prohibited by law, (iii) copy, modify, create derivative works of or remove proprietary notices from the SaaS Service, (iv) interfere with operation of the SaaS Service or circumvent its access restrictions, or (v) use the SaaS Service to develop a product that competes with the SaaS Service.

(d) Shrink-wrap Terms.  Provider agrees and acknowledges that the terms of any shrink-wrap or click-wrap license agreement or any other terms that may be included with or in the SaaS Service, software, or other material presented to Discord in connection with any SaaS Services do not apply and are superseded by the terms of the MSA.

(e) Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Appendix or the MSA. Except for Provider’s express rights under the MSA, as between the parties, Discord retains all Intellectual Property Rights and other rights in any Discord Data that Discord makes available to Provider. Except for Discord’s express rights under the MSA, as between the parties, Provider and its licensors retain all Intellectual Property Rights and other rights in the SaaS Services.

3. Discord Data.

3.1 Data Privacy Addendum. If Provider has access to Personal Data in connection with this MSA, then Provider will execute a Data Privacy Addendum with Discord prior to beginning any Services or providing any Software or Deliverables.

3.2 Use.  Provider may collect, use, store, and retain Discord Data solely:

(a) to the extent that collection, use, storage, or retention is expressly authorized under the applicable SOW;

(b) as necessary for Provider to perform the Professional Services in accordance with this MSA; 

(c) in compliance with any instructions, specifications, or requirements provided by Discord; and

(d) by means expressly authorized by Discord.

3.3 Backup and Export.  Discord retains the right to review and retain any and all Discord Data contained in or used by the SaaS Services or otherwise held or controlled by Provider.  Provider will back up all Discord Data on a regular basis in accordance with its standard backup or record retention policies.  Upon Discord’s request, Provider will restore data from backup files within 24 hours of Discord’s written request.  During the Term, Provider will enable and assist Discord to export Discord Data from the SaaS Service at any time.  

3.4 Security Measures.  Provider will implement and maintain the security measures described in the SOW, if any.  In all cases, Provider will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Discord Data.

4. Open Source Materials. Provider will not incorporate or use any open source materials in the SaaS Services that are governed by any version of the Affero General Public License (AGPL).  Provider may incorporate or use other open source materials only as expressly described in the applicable SOW.

5. Indemnification. In addition to the indemnity obligations under Section 11 of the MSA, Provider will additionally defend, indemnify, and hold harmless Discord Indemnitees from and against all Claims asserted against any Discord Indemnitee arising from or related to an allegation that Discord’s use of SaaS Services violates, infringes, or misappropriates a third party’s rights, including Intellectual Property Rights. Provider will have no obligation under this Section 5 for any Claim that would not have occurred but for (a) Discord’s breach of Section 2(c) (License) of this Appendix; (b) combination of the SaaS Service with materials not provided by the Provider under the MSA, unless the combination is required by the MSA or suggested by Provider’s specifications, instructions, or other documentation, (c) unauthorized modification of the SaaS Service by Discord; (d) Provider’s incorporation of information, design, specification, software, data, or material furnished by Discord into the SaaS Service.

6. Service Level Terms.  

6.1 Performance Standards. 

(a) Target Availability. Provider will use best efforts to provide SaaS Services at Target Availability.

(b) System Maintenance Notice. Provider will provide Discord with at least 10 business days’ prior written notice of any scheduled maintenance or as much prior written notice as possible (and in any event no less than 60 minutes’ prior written notice) for unscheduled, emergency maintenance. Provider will use best efforts to conduct maintenance outside of standard business hours. System Maintenance in any given month will not exceed ten (10) minutes per month. Any time during which the SaaS Services is unavailable to Discord due to maintenance or other activity by Provider for which Provider fails to give notice, which exceeds the permitted time allotment, or which occurs outside of the foregoing permitted hours will be included in the calculation of Downtime.

(c) Data Backups. On at least a daily basis, Provider will back up all Discord Data entered into the SaaS Services since the last backup to Provider’s backup location. Upon Discord’s request, Provider will restore data from backup files. Provider will ensure that backups do not cause Downtime. Provider will restore Data as requested by Discord within 24 hours of Discord’s written request.

(d) Reporting. Upon Discord’s request, Provider will provide reporting and information regarding Provider’s performance with respect to the Service Levels and such other metrics as reasonably requested by Discord from time to time.

6.2 SLA Credits.

(a) SLA Credit Calculation.  If the SaaS Service fails to meet the Target Availability during any given month, Provider will issue credits to Discord (the “SLA Credit”) calculated as follows:

(b) Application.  Provider will credit all SLA Credits accrued to Discord in the month in which the SLA Credits accrue.  If no further invoices will be submitted to Discord, Provider will pay such SLA Credits to Discord within 30 days of the end of the month in which such SLA Credits accrue.

(c) Chronic Failure.  If Provider fails to meet any Service Level in any 2 months in a rolling 6-month period during the term of this MSA, Discord may terminate the Services immediately upon written notice to Provider.

7. Support.  Except as otherwise stated in a SOW, Provider will provide support services at no additional charge, including all of the following:

7.1 Errors.  Provider will promptly repair or replace, without any additional charge, the Services, to fix any bugs, defects or errors (collectively, “Errors”). If Provider becomes aware of an Error impairing the performance or use of the SaaS Services, Provider will disclose such Error to Discord and will deliver an Update correcting or mitigating such Error to Discord as soon as it is available to any other customer.

7.2 Updates.  Provider will update the Services and make available to Discord any and all patches, enhancements, updates, upgrades, and new versions of the SaaS Services that Provider makes generally commercially available (“Updates”) and any such Updates will be deemed part of the Services. Provider represents and warrants that no Update (1) will impair the operation or disable or inhibit any functions or features of the SaaS Services or cause performance of the SaaS Services to degrade; or (2) adversely affect the form, fit, function, reliability, safety, or serviceability of the SaaS Services.

7.3 Technical Support.  Provider will make technical support available to Discord by toll-free telephone number and e-mail, 24 hours per day, 7 days per week. Provider’s support Personnel will provide Discord with remote assistance for help in using and operating the SaaS Services and to accept reports of Errors in the SaaS Services. Provider will ensure that Personnel performing any maintenance and support services are experienced, knowledgeable and qualified in the use, maintenance and support of the SaaS Services.

7.4 Reported Errors

(a) Several Levels. Errors will be classified as follows:

(i) “Severity Level 1” is an emergency condition which makes the use or continued use of any one or more functions of the SaaS Services impossible or significantly impaired.

(ii) “Severity Level 2” is, other than any Severity Level 1 Error, any condition which makes the use or continued use of any one or more functions of the SaaS Services difficult and which Discord cannot reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort.

(iii) “Severity Level 3” is, other than any Severity Level 1 or Severity Level 2 Error, any limited problem condition which is not critical in that no loss of Discord Data occurs and which Discord can reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort.

(iv) “Severity Level 4” is, other than any Severity Level 1, Severity Level 2 or Severity Level 3 Error, a minor problem condition or documentation error which Discord can easily circumvent or avoid. Additional requests for new feature suggestions are classified as Severity Level 4.

(b) Response Times.  Upon becoming aware of an Error (including upon notice from Discord which may be communicated electronically, telephone, or in writing), Provider will (i) acknowledge notice of Error with the Response Time; (ii) create a Workaround (as defined below) within the Workaround Time; and (iii) fully resolve the Error within the Resolution Time as described below.  “Workaround” means a configuration change, manual procedure, or other workaround designed to regain intended or previously functioning features and functionality, but that does not provide a complete resolution.