Common use of Functional Performance Clause in Contracts

Functional Performance. The pages of the Co-Branded Site shall provide the contractually agreed upon content ninety-nine percent (99%) of the measured Uptime within each one week period of this Agreement, barring exceptions detailed under Measurement Stipulations below. Functional service means a User visiting the Co-Branded Site is able to access the content outlined in this Agreement. Measurement Stipulations: Performance shall be measured by multiple independent third party companies agreed upon by both parties. Measurement periods shall begin and end at 00:00 Sunday morning. Any scheduled maintenance performed by e-centives or its agents shall be excluded from uptime calculations. e-centives shall not be responsible for access problems to the Co-Branded Site caused by failure of a User or third party measurement company's Internet Service Provider, intervening Internet Service Providers between the User or third party measurement company's Internet Service Provider, or peering points (public or private) between any of the aforementioned parties. Such failures shall not be included in performance measurement calculations. Problems accessing content caused by User action or lack thereof (i.e. forgot password, proxies or browser is not standards-compliant, etc.) shall not count toward performance measurement calculations. However, e-centives shall take commercially reasonable steps to solve such problems as they arise.