Service Level Agreement
2. Network Availability
Third Generation assures Customer 100% uptime availability of the Third Generation Network covered by this SLA. Subject to Section 3 below, in the event that Third Generation fails to provide Customer with the Products and Services purchased by Customer in accordance with the Agreement and such failure results from the complete unavailability of the Third Generation Network (other than as specified below, each such event, a “Qualified Network Downtime Event”), Third Generation will issue Customer a Service Credit calculated as follows.
(a) A Qualified Network Downtime Event shall start upon Customer’s submission of a written trouble ticket specifying that a Qualified Network Downtime Event has occurred and the details associated with such Qualified Network Downtime Event. All such trouble tickets must be submitted by Customer through Third Generation’s client support area or through Third Generation’s technical support department and are subject to confirmation by Third Generation prior to qualifying for any Service Credit. Subject to Section 3 below, upon the passage of five (5) continuous minutes of a Qualified Network Downtime Event, the Service Credit shall equal five percent (5%) of the monthly fees payable by Customer in respect of such Products and Services for the month in which such Qualified Network Downtime Event first occurred and thereafter during the pendency of such unavailability, the Service Credit shall increase by an additional five percent (5%) for each continuous thirty (30) minutes of a Qualified Network Downtime Event up to a maximum of one hundred percent (100%) of monthly fees payable by Customer in respect of such Products and Services for the month in which such Qualified Network Downtime Event first occurred.
(b) All Service Credits are calculated by Third Generation on a “per-event-basis/per-related-series-of-events-basis” and in no event will downtime or unavailability be cumulated during any monthly period for purposes of determining a Customer’s right to any Service Credit. The following events do not constitute a Qualified Network Downtime Event or qualify for any Service Credit under this SLA: (i) Scheduled Maintenance or (ii) Customer generated outages created by failed equipment, customer mis-configurations, exploited servers, or traffic in excess of the maximum allowed by contract. Service Credits are based directly on all equipment and/or services affected by a Qualified Network Downtime Event. Products, services or hardware not related to a Qualified Network Downtime Event do not qualify for a Service Credit. Redundant Internet connectivity is measured as traffic routing into and out of a Customer’s equipment through the Third Generation Network out to internet backbone carriers and does not include third party carrier latency or peering issues not utilized by Third Generation.
3. Service Credits
Service Credits do not constitute a refund in respect of any product or service and may not be carried forward to future months, paid for or exchanged for cash or other monetary consideration or value. Service Credits are not available (i) in respect of any outage or event associated with Scheduled Maintenance or arising from any denial of service attack, virus, hacking attempts or any other circumstances or events that are not within the control of Third Generation, including any Force Majeure Event, (ii) to any Customer that is more than ten (10) days past due on any amount owing to Third Generation or any Customer that has breached the Agreement or (iii) in respect of any products or services contracted for with Third Generation that expressly exclude technical support or such Service Credits. Valid approved Service Credits will appear as a credit for products and services and be applied against the amounts owing in respect of such products and services on the next billable invoice following the month in which occurred the Qualified Network Downtime Event giving rise to such Service Credit. In order for a Customer to qualify for a Service Credit, the Customer must (A) have purchased and paid for Products and Services, (B) submit a request for a Service Credit, as applicable, in writing via Third Generation’s client support area within three (3) days from the date of event giving rise the requested Service Credit and in accordance with the terms of this SLA. Failure to request a Service Credit in accordance with the terms of this SLA will result in an automatic waiver of any rights to such Service Credit under this SLA in respect of the event giving rise to such Service Credit. IN THE EVENT THAT ANY OUTAGE OR RELATED SERIES OF OUTAGES GIVING RISE TO ANY SERVICE CREDIT HEREUNDER SPANS MORE THAN ONE CALENDAR MONTH, THE MAXIMUM TOTAL SERVICE CREDIT TO WHICH CUSTOMER SHALL BE ENTITLED FOR SUCH OUTAGE OR RELATED SERIES OF OUTAGES SHALL NOT EXCEED ONE HUNDRED PERCENT (100%) OF CUSTOMER’S MONTHLY RECURRING FEE FOR THE PRODUCTS AND SERVICES DURING THE FIRST MONTH IN WHICH SUCH OUTAGE OR RELATED SERIES OF OUTAGES FIRST OCCURRED AND CUSTOMER SHALL NOT BE ENTITLED TO ANY OTHER SERVICE CREDITS IN RESPECT OF SUCH OUTAGE OR RELATED SERIES OF OUTAGES FOR THE OTHER MONTHS DURING THE PENDENCY OF SUCH OUTAGE OR RELATED SERIES OF OUTAGES. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM TOTAL SERVICE CREDITS TO WHICH CUSTOMER MAY BE ENTITLED UNDER THIS SLA DURING ANY CALENDAR MONTH TOGETHER WITH ALL OTHER SERVICE CREDITS, REFUNDS, GUARANTEES, WARRANTIES AND OTHER SERVICE LEVEL AGREEMENTS CUSTOMER MAY HAVE WITH THIRD GENERATION, SHALL NOT EXCEED ONE HUNDRED PERCENT (100%) OF CUSTOMER’S MONTHLY RECURRING FEE FOR THE PRODUCTS AND SERVICES AFFECTED DURING SUCH MONTH.
4. Scheduled Maintenance
Customer hereby acknowledges that Third Generation may, from time to time, perform maintenance service on the Third Generation Network, with or without notice to Customer, which may result in the unavailability of the Third Generation Network. Downtime or unavailability resulting from Scheduled Maintenance shall not constitute a Qualified Network Downtime Event or qualify for any Service Credit. Customer must subscribe to Third Generation’s maintenance mailing list and provide accurate and timely information in Third Generation’s client support area in order for Third Generation to notify Customer of all Scheduled Maintenance. Customer’s failure to subscribe to Third Generation’s maintenance mailing list or to provide accurate and timely information on Third Generation’s client support area may result in the forfeiture of any Service Credit based on downtime or unavailability arising from Scheduled Maintenance for which Customer did not receive timely notice. Emergency maintenance and maintenance for which Third Generation has not given Customer notice in accordance with this SLA shall not be deemed Scheduled Maintenance for purposes of this SLA.