Service Level Agreement
This Service Level Agreement is incorporated into the signed Service Order between Customer and FlexScale Networks LLC (“FSN”) that refers to this Service Level Agreement. This Service Level Agreement constitutes the service level commitment of FSN to Customer for the services specified in the Services Orders that are executed between FSN and Customer.
Please review this Service Level Agreement. By signing the MSA referencing these terms, Customer agrees to be bound by the Service Level Terms and Conditions set forth in this document.
1. Definitions
The following terms and definitions shall be used in this Service Level Agreement (“SLA”):
a. Measurement Period – The measurement period begins on the first day of each month and ends on the last day of each month. For service initiation, the measurement period begins on the first day of the next full month after service is initiated. For service termination, the final measurement period is considered the last full month prior to service termination.
b. Service Connection – A generic term for your contracted Internet service.
c. CPE – Customer Premises Equipment. Telecommunications and information technology equipment located at the Customer’s physical location.
d. Broadband – A Service Connection that is asymmetric in its download and upload performance.
2. Service Connection Features
FSN Service Connections consist of three components, a physical link, an IP connection between the customer and the internet, and the appropriate CPE. The physical link will generally be an Ethernet, Satellite, or wireless connection from the Customer’s business location to the Internet.
3. Network Availability
a. Service Level Commitment
For the Service Connections provided to Customer under the Agreement with FSN, FSN is committed to maintain an end-to-end Network Availability (as defined below) of ninety-nine and nine-tenths percent (99.9 %) for fiber delivered services. For Broadband services the Network Availability commitment is ninety-nine percent (99.0%). For Broadband services backed up by a secondary Broadband service the Network Availability is ninety-nine and nine-tenths percent (99.9 %). For a Broadband service that is backed up by a secondary Broadband service, both the primary and the secondary Broadband service must be down simultaneously for Customer to be eligible for a SLA credit.
b. Measurement and Calculation
“Network Availability” is the ratio of the time the core network can accept and deliver information to the total time in the Measurement Period. Network Availability is expressed as a percentage. The calculation for Network Availability is:
Total Minutes of Downtime in Measurement Period
—————————————————————– x 100%
Total Minutes in Measurement Period
Components Included:
This is a network-wide measurement
c. Components Excluded:
The following shall be excluded from any network outage time when calculating the Network Availability:
Network downtime during scheduled maintenance windows of FSN or its vendors
The failure of any components due to negligence or intentional misconduct of the Customer
All Customer Premise Equipment (“CPE”) not provided by FSN
Network downtime during which FSN cannot access the required facilities due to inaccessibility beyond FSN’s reasonable control
Network Downtime due to Acts of God or nature
Failures due to the local loop
Network Downtime due to scheduled maintenance, caused by the act or failure to act of Customer or any party other than FSN or caused by any action or event beyond FSN’s reasonable control
Network Downtime due to failure of any network or system provided by customer or any third party
d. Network Availability Remedies
Upon notification by the Customer and verification by FSN that the actual Network Availability is below the committed Network Availability for the Measurement Period, FSN shall apply a credit equal to fifty percent (50%) of the monthly recurring charge under the Agreement for each line validated outages in the applicable Measurement Period. Such credit shall be Customer’s sole and exclusive remedy for FSN’s failure to meet the committed Network Availability. Customer must request credit within sixty (60) days of the validated outage. FSN reserves the right to determine if an outage is considered a validated outage. Customer payables must be current prior to receiving any credits. Requests for credits may take up to thirty (30) days to research and review; Customer is responsible for paying current invoices and will receive a credit after the thirty (30) day review period. The maximum SLA credit within a Measurement Period is the monthly recurring charge for the Service Connection impacted by the outage.
4. Throughput
a. Service Level Commitment
Latency to the Internet Gateway from the Customer CPE will not exceed 60ms.
b. Measurement and Calculation
Throughput is the ability of the network to transmit traffic without loss or error at the contracted connection speed, measured over the Measurement Period. Latency to the gateway will not exceed 60ms.
c. Excluded Items
The following shall be excluded from any determination of Throughput:
The failure of the CPE or any components on the Customer side of the CPE, whether such CPE was provided by FSN or the customer
Service degradation during FSN’s scheduled maintenance windows
The failure of any components due to negligence or intentional misconduct of the Customer
Service degradation during which FSN cannot access required facilities due to inaccessibility beyond FSN’s reasonable control
Service degradation due to Acts of God or nature
Any lines added, removed, or re-configured during the month
Service degradation due to the local loop
Network Downtime or Service Degradation due to failure of any network or system provided by customer or any third party.
Network Downtime caused by the act, or failure to act, of the Customer or any party other than FSN or caused by any action or event beyond FSN’s reasonable control
All ADSL and IDSL services
d. Throughput Remedies
Upon notification by the Customer and verification by FSN that the actual Throughput is below the Committed Throughput for the Measurement Period, FSN shall apply a credit equal to fifteen percent (15%) of the monthly service connection charge for each line that fails to meet the Committed Throughput in the applicable Measurement Period. Such credit shall be Customer’s sole and exclusive remedy for FSN’s failure to meet the committed Throughput. Customer must request credit within sixty (60) days of the validated outage. FSN reserves the right to determine if an outage is considered a validated outage. Customer payables must be current prior to receiving any credits. Requests for credits may take up to thirty (30) days to research and review; the customer is responsible for paying current invoices and will receive credit after the thirty (30) day-review period.
5. Mean Time to Respond
a. Service Level Commitment
FSN is committed to maintaining a maximum response time of (one) 1 hour. FSN will accept trouble calls
from Customer 24 hours a day, 7 days a week. Within one (1) hour of opening a trouble ticket, a FSN representative will attempt to contact the Customer through the trouble ticket system and inform the Customer of the Estimated Time to Repair (“ETTR”). If a significant change in the ETTR occurs, FSN will attempt to provide an update to the ETTR to the Customer.
b. Measurement and Calculation
Elapsed time is measured from the time a particular trouble ticket is opened by FSN to the time FSN attempts to contact the Customer with a status update of the trouble reported. The “Mean Time to Respond” calculation is as follows:
SUM of (Time Representative Attempts to Contact Customer – Time Trouble Reported)
———————————————————————————————- (Number of
Trouble Tickets Opened During the Measurement Period)
c. Excluded Items
The following shall be excluded from any determination of Mean Time To Respond:
When response is not met due to Acts of God or nature, scheduled maintenance, the act or failure to act of Customer or any party other than FSN or any action or event beyond FSN ‘s reasonable control. When response is not met due to of any network or system provided by customer or any third party.
d. Mean Time to Respond Remedies
Upon notification by the Customer and verification by FSN that the committed Mean Time to Respond is not met for the Measurement Period, FSN shall apply a credit equal to fifteen percent (15%) of the monthly service connection charge for each line included in the trouble ticket for which FSN did not meet the committed Mean Time to Respond. Such credit shall be Customer’s sole and exclusive remedy for FSN’ failure to meet the committed Mean Time to Respond. Customer must request credit within sixty (60) days of the validated outage. FSN reserves the right to determine if an outage is considered a validated outage. Customer payables must be current prior to receiving any credits. Requests for credits may take up to 30 days to research and review; Customer is responsible for paying current invoices and will receive a credit after the 30 day review period.
6. Mean Time to Repair
a. Service Level Commitment
For SDSL and coaxial cable circuits, FSN is committed to maintaining a maximum of 24-hour repair time for service problems that do not require on-site dispatches and a maximum of 48-hour repair time for service problems that require on-site dispatches. Replacement of failed CPE provided by FSN is included in the 48-hour repair time commitment.
For fiber Ethernet, DS-1, DS-3 and Wireless service, FSN is committed to maintain a maximum of a 4-hour repair time for service problems that do not require on-site dispatches and a maximum of 24-hour repair time for service problems that require on-site dispatches. Replacement of failed CPE provided by FSN is included in the 24-hour repair time commitment.
b. Measurement and Calculation
Elapsed time is measured from the time the trouble ticket is opened by FSN to the time service is restored to normal operating performance. The calculation for “Mean Time to Repair” is as follows:
Mean Time to Repair (Without On-Site Dispatches) =
[Total Outage Time (hours) for all Trouble Tickets (no dispatch)]
————————————————————————————-
[Total Number of Trouble Tickets (no dispatch)]
Mean Time to Repair (With On-Site Dispatches) =
[Total Outage Time (Hours) for all Trouble Tickets (On-site Dispatches)]
———————————————————————————————
[Total Number of Trouble Tickets (On-site Dispatches)]
c. Excluded Items
The following shall be excluded from any determination of Mean Time to Repair:
Trouble tickets due to the failure of any components on the Customer side of the CPE.
Trouble tickets due to FSN ‘ or Vendor’s scheduled maintenance windows.
Trouble tickets due to the failure of any components due to negligence or intentional misconduct of the Customer.
Trouble tickets for which FSN cannot access required facilities due to inaccessibility beyond FSN ‘s reasonable control.
Trouble tickets due to Acts of God or nature.
Trouble tickets related to any lines added, removed, or re-configured during the month.
Trouble tickets associated with lines used as backup or alternate routes.
When response is not met due to of any network or system provided by Customer or any third party.
“No Trouble Found” trouble tickets.
Failures due to the local loop.
Trouble Tickets caused by the act or failure to act of Customer or any party other than FSN or caused by any action or event beyond FSN ‘s reasonable control.
d. Mean Time to Repair Remedies
Upon notification by the Customer and verification by FSN that the actual Mean Time to Repair level is below the committed level, FSN shall apply a credit equal to fifteen percent (15%) of the monthly service connection charge for each line included in the trouble tickets for which FSN did not meet the committed Mean Time to Repair. Such credit shall be Customer’s sole and exclusive remedy for FSN’s failure to meet the committed Mean Time to Repair. Customer must request credit within sixty (60) days of the validated outage. FSN reserves the right to determine if an outage is considered a validated outage. Customer payables must be current prior to receiving any credit. Requests for credits may take up to thirty (30) days to research and review; the Customer is responsible for paying current invoices and will receive a credit after the thirty (30) day review period.
e. Chronic Outage
If Customer experiences any Chronic Outage (as hereinafter defined) with respect to the Service, Customer shall be entitled to terminate the Affected Service without further obligation by providing FSN with written notice following such Chronic Outage. For the purposes of this Section 6e, a “Chronic Outage” means, with respect to a circuit, the occurrence during any calendar month of: (i) more than four (4) related Outages; or (ii) more than twenty-four (24) aggregate hours of Outages. For the avoidance of doubt, a bouncing circuit constitutes a single Outage, regardless of whether FSN opens multiple trouble tickets during the tendency of an Outage resulting from a bouncing circuit.
Customer may, as its sole and exclusive remedy for Chronic Outages, upon fifteen (15) calendar days prior written notice to FSN, terminate the Affected Service without incurring any Termination Liability Charges with respect to such affected circuit; however, Customer agrees to pay all usage charges for such Affected Service accrued to the date of termination (the “Early Termination Right”). Customer must exercise their Early Termination Right with respect to the Affected Service within ninety (90) calendar days after Customer first experiences a Chronic Outage. In the event Customer fails to exercise its Early Termination Right within this ninety (90) day calendar period, Customer shall be deemed to have waived its Early Termination Right with respect to the Affected Service.
An Outage shall not be deemed to have occurred if the Service is unavailable or impaired due to any of the following:
(i) Interruptions on a Service for which the Start of Service Date has not yet commenced;
(ii) Interruptions caused by the negligence, error, or omission of Customer or others authorized by Customer to access, use or modify the Service or equipment used by Customer;
(iii) Interruptions due to power failure at Customer premises, or the failure or poor performance of CPE;
(iv) Interruptions during any period in which FSN or its subcontractors are not afforded access to the premises where the access lines associated with the Service are terminated, provided such access is reasonably necessary to prevent a degradation or to restore Service;
(v) Interruptions during any period that FSN has communicated to Customer in any other manner that the Service will be unavailable for Normal Maintenance or grooming purposes, or Customer has released the Service to FSN for the installation of a Customer Service order;
(vi) Interruptions during any period that Customer elects not to release the Service for testing and/or repair and continues to use it on an impaired basis;
(vii) Interruptions resulting from Force Majeure;
(viii) Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner;
(ix) Interruptions for which no trouble was found by FSN;
(x) Interruptions resulting from a FSN disconnect for Cause.
7. Remedies – General
a. Maximum Allowable Remedy
At no time will multiple remedies be provided to the Customer for the same, similar or related troubles on the same line. FSN shall have no liability for any failure of any FSN network, service or equipment to meet the forgoing guidelines due to scheduled maintenance, caused by the act or failure to act of Customer or any party other than FSN or caused by any action or event beyond FSN’s reasonable control. The Customer’s sole and exclusive remedy for FSN’s failure to meet the committed Network Availability or other failure to meet the foregoing guidelines shall be the credit outlined in the applicable section. The maximum allowable remedy in a given Measurement Period will be fifteen percent (15%) for each line affected. Customer must request credit within sixty (60) days of the validated outage or applicable event. FSN reserves the right to determine if an outage or other covered event is considered validated pursuant to this Service Level Agreement.
THE CUSTOMER UNDERSTANDS THAT THE SERVICES, NETWORKS AND EQUIPMENT REFERRED TO HEREIN WILL BE FURNISHED “AS IS” AND WITH ALL FAULTS. OTHER THAN ANY LIMITED WARRANTY THAT MAY BE GIVEN TO CUSTOMER UNDER THE AGREEMENT, FSN MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUATORY, IN THIS SLA OR IN ANY COMMUNICATION WITH CUSTOMER REGARDING SUCH SERVICES, NETWORK OR EQUIPMENT. FSN SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. FSN EXPRESSLY DISCLAIMS RESPONSIBILITY FOR ARISING OUT OF OR BASED UPON THE CONTENT OF INFORMATION TRANSMITTED BY CUSTOMER OR THE RESULTS OF ANY TRANSMISSION. FSN DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES, NETWORKS OR EQUIPMENT COVERED BY THIS SLA WILL BE UNINTERRUPTED OR ERROR FREE.
