PLEASE READ CAREFULLY: THIS IS PART OF THE MASTER SERVICES AGREEMENT is between UCclouds, LLC, ("UCclouds") and the individual or entity ("Customer") for certain computer infrastructure and related services provided by UCclouds as ordered or accepted pursuant to the Terms of Service ("Services"). The Customer's use of and access to Services is governed by the Master Services Agreement which includes the Terms of Services, Service Level Agreement, Privacy Agreement, IP Address Policy, UCclouds Acceptable Use Policy and relevant appendices (which may include without limitation the international-related addenda that is attached below) ("MSA"). BY CLICKING OR CHECKING THE BOX PRESENTED WITH THE MSA OR INSTALLING OR USING THE SERVICES, THE CUSTOMER AGREES THAT (1) CUSTOMER HAS ACCEPTED THE MSA IN ITS ENTIRETY, (2) AGREES TO BE BOUND BY THE MSA (AS AMENDED FROM TIME TO TIME AS PROVIDED IN SECTION 19.1 OF THE TERMS OF SERVICE ), (3) IF THE CUSTOMER IS AN INDIVIDUAL, THEN THE INDIVIDUAL REPRESENTS AND WARRANTS THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THE MSA AND IF THE CUSTOMER IS AN ENTITY, THEN THE INDIVIDUAL WHO AGREES TO THE MSA REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND (4) THIS MSA CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN UCCLOUDS AND CUSTOMER. IF THE CUSTOMER DOES NOT AGREE WITH ALL THE TERMS OF THIS MSA AND DOES NOT AGREE TO BE BOUND BY THIS MSA, PLEASE DO NOT CLICK OR CHECK THE BOX PRESENTED WITH THE MSA OR INSTALL OR USE THE SERVICES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UCCLOUDS AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THEY ARE ALREADY BOUND TO THE TERMS AND CONDITIONS OF THIS MSA; MANUALLY EXECUTING THIS MSA IS FOR RECORD KEEPING PURPOSES ONLY; AND MANUALLY EXECUTING THIS MSA DOES NOT AMEND OR SUPERSEDE ANY OF THE EXISTING TERMS AND CONDITIONS OF THIS MSA:
Service Level Agreement ("SLA")
The SLA is incorporated into the MSA and applicable to all Services delivered to Customers. This SLA does not apply to the availability of Third Party Services which are subject to the TPS Agreements. The SLA is binding only on the Customer and UCclouds and does apply to any Third Parties, including Customer End Users. The issuance of SLA Credits (defined below) is the sole and exclusive remedy of Customer and UCclouds sole and exclusive obligation, for any failure by UCclouds to satisfy the requirements set forth in the SLA.
SLA Credit Claim
To claim a credit the Customer shall follow the Approved Procedure within seven (7) days of the end of the Claimed Outage. The claim will be reviewed by UCclouds, any credit for Verified Outages ("SLA Credits") shall be issued as provided below.
"Claimed Outage" means the period (measured in minutes) during which Customer claims a Loss of Service during a Measurement Period as reported using the Approved Procedure.
"Excluded Minutes" means the period of any outage measured in minutes due to the exclusions set forth in the SLA Credit Exclusion in the Measurement Period.
"Measurement Period" means the relevant Initial Term or Renewal Term.
"Qualifying Outage Minutes" mean the aggregate of all minutes of a Verified Outage during a Measurement Period, minus any Excluded Minutes in that Measurement Period.
"Services" means the services ordered by Customer and accepted by UCclouds as provided in the MSA.
"Loss of Services" means the Customer's inability to connect to the UCclouds data centers providing the Services to access either (i) the Client Portal or (ii) a Service. If Customer can connect to one of the UCclouds data centers to access either the Client Portal or any of the Services, there is no Loss of Services, whether or not Customer can use the Customer Content.
"Verified Outage" means a Claimed Outage for a particular Service that has been verified by UCclouds using its monitoring logs of accessibility of the UCclouds data centers or any of the Services.
Public Network: UCclouds will use reasonable efforts to provide a service level of 100% for the Public Network.
Private Network: UCclouds will use reasonable efforts to meet the service level of 100% for the Private Network.
Client Portal: UCclouds will use reasonable efforts to meet the service level of 100% for access to the Client Portal.
Redundant Infrastructure: UCclouds will use reasonable efforts to meet the service level of 100% for access to the power and HVAC services provided to Customers.
Should Subscriber lose access to hosted desktops or applications (“downtime”) during a calendar month for a single continuous period totaling 2.1 hours to 6 hours, Subscriber shall be entitled to a credit dollar amount consisting of five percent (5%) of the previous calendar month’s subscription billing, for 6.1 hours to 10 hours, Subscriber shall be entitled to a credit dollar amount consisting of ten percent (10%) of the previous calendar month’s subscription billing for 10.1 hours to 14 hours, Subscriber shall be entitled to a credit dollar amount consisting of fifteen percent (15%) of the previous calendar month’s subscription billing for 14.1 hours to 18 hours, Subscriber shall be entitled to a credit dollar amount consisting of twenty percent (20%) of the previous calendar month’s subscription billing. For the purposes of this section, downtime does not begin until Subscriber has notified UCclouds.com of such inability to connect to hosted desktops or applications, and ends when UCclouds.com has notified Subscriber the condition has been fixed. Only downtime events caused solely caused by an UCclouds.com operated datacenter hardware device, or operating system used for to deliver UCclouds.com services. Downtime arising out of a malfunction of subscriber’s hosted operating system(s), or any software installed therein, is not eligible for SLA claims. Scheduled Maintenance, and downtime caused by other parties or causes beyond the direct control of UCclouds.com are not eligible for claims to compensation under this SLA. This SLA shall be Subscriber’s sole remedy against UCclouds.com for any loss incurred due to downtime. Subscriber is limited to a maximum of one SLA claim each calendar month and such qualifying downtime event must have occurred during said calendar month (i.e. Subscriber may not bank, or “roll over” a subsequent SLA event or claim from a calendar month for a credit to be applied to an invoice in a latter billing period).
In order to receive credit for a qualifying downtime event under this SLA, Subscriber must notify UCclouds.com via Ticket of its desire to collect under an SLA claim no later than 30 days after the SLA qualifying incident occurs. Failure to notify UCclouds.com within this period shall constitute a waiver to any compensation or credit as provided by this SLA.
Should Subscriber lose access to hosted desktops or applications (“extended downtime”) for a continuous period of at least 48 hours or more in one occurrence, Subscriber may terminate this agreement without penalty. Said termination shall be Subscriber’s sole remedy for any loss arising out of extended downtime.
UCclouds.com’s acceptance of an SLA claim and subsequent compensation shall not ever be construed as an admission of liability for downtime or extended downtime by UCclouds.com. Nor shall said acceptance of an SLA claim and subsequent compensation ever be an admission by UCclouds.com that UCclouds.com a negligent act, error, and/or omission by UCclouds.com has occurred. UCclouds.com’s acceptance of an SLA claim and subsequent compensation shall never be construed as an admission of a breach of contract by UCclouds.com or that UCclouds.com has failed to perform a contractual obligation and/or duty.
Subscriber’s acceptance of SLA compensation shall constitute a final settlement and waiver of any claim for damages (future or otherwise) by Subscriber arising out of or attributable to said downtime or extended downtime.
Despite best efforts, no system, including UCclouds.com, is completely immune from failure, downtime, or service interruptions. Subscriber should understand that the possibility for downtime exists with UCclouds.com services even when UCclouds.com performs all duties under this agreement. Subscriber must consider carefully this risk and the potential effect of downtime on its organization when choosing a hosted application service such as UCclouds.com.
Notwithstanding the remedies provided by the Service Level Agreement, Subscriber shall hold UCclouds.com harmless for any direct loss, indirect loss, and/or consequential damages arising out of or attributable to downtime and/or extended downtime.
Customer is eligible to receive SLA Credit, subject to the following process:
- The Customer's identified master administrative user will report a Claimed Outage by opening a ticket on the Client Portal. The ticket must include Service type, IP Address, dates and times, error messages received (if any), contact information, and full description of the interruption of Service including logs, if applicable.
- In order to receive a SLA Credit, Customer must submit a report of Claimed Outage to the Client Portal within seven (7) days of the end of the Claimed Outage after the technical issues have been resolved.
- UCclouds will review Claimed Outages against Verified Outages.
- UCclouds determination of SLA Credits is final.
- Customer agrees to pay all invoices in full while a Claimed Outage is being reviewed or SLA Credit is being determined.
- UCclouds will communicate the SLA Credits to Customer through UCclouds accounting and the ticket will be updated, provided that, the SLA Credit may not be used to reduce the payments due in a Renewal Term below zero. UCclouds will apply the SLA Credits to the Customer's future invoices for the relevant Services subject to UCclouds standard policies.
Customers who at the time of the report of the Claimed Outage are not current on their payment of the fees for the Services do not qualify for SLA Credits for such Claimed Outages. In addition, Customers who have not paid their fees when due for the Services three or more times in the previous twelve calendar months do not qualify for SLA Credits.
Use of SLA Credits
SLA Credits may be used solely for future payments due for the particular Service or failure of other obligations (such as hardware) for which the Service Credits are issued. The SLA Credits may not be sold or transferred to other parties. SLA Credits may not be used until any Customer violations of the MSA are resolved to UCclouds reasonable satisfaction. Any Customer making false or duplicative claims for Claimed Outages will incur a one-time charge of $50 per incident for such claims. False or duplicative claims are also a violation of the MSA and may, in UCclouds sole discretion, result in a suspension of Services. SLA Credits shall expire on the termination or expiration of the MSA.
SLA Credit Exclusion
Service Level Credits do not apply for periods during which the Services are not available for the following reasons:
- UCclouds or its third party service providers performing system upgrades, enhancements and routine maintenance activities which are announced on the Client Portal upon two days advance notice or for maintenance determined by UCclouds to be an emergency upon notice provided through the Client Portal ("Scheduled Maintenance");
- Customer use of the Services or any Customer End User's use of the Customer Offering in violation of the MSA;
- Issues relating to Customer Content;
- Problems with Customer's access to Internet;
- System administration, commands, file transfers performed by Customer representatives;
- Events described in the Force Majeure provision;
- Suspension of Customer's access to the Services as provided in the MSA;
- Violation of the AUP;
- Problems caused by Customer's use of the Services or any Customer End User's use of the Customer Offering after UCclouds advised Customer or any Customer End User to modify such use, if Customer or any Customer End User did not modify its use as advised;
- Problems arising from Customer or any Third Party's software, hardware, or other technology or equipment.
Special Obligations relating to Hardware Replacement and Hardware Upgrades
Hardware Replacement: UCclouds will use reasonable efforts to replace failed hardware and hardware components located within our data centers at a service level of two hours after UCclouds verification of Customer's notification in the Client Portal ticketing system of a hardware failure. This response period does not include time required to reload the operating system or applications. If the installation does not meet this service level, Customer shall be eligible for SLA Credits as provided in Table A below for the future fees directly related to the hardware if the Customer follows the Approved Procedure.
Hardware Upgrades: UCclouds will use reasonable efforts to ensure that all planned hardware upgrades will commence and be completed at a service level within two hours of hardware upgrade maintenance periods that have been scheduled and confirmed in advance through the online ticketing system in the Client Portal. This response period does not include time required to reload the operating system or applications. If the installation does not meet this service level, Customer shall be eligible for SLA Credits as provided in Table B below for the future fees directly related to the hardware upgrade if the Customer follows the Approved Procedure.
|Table A: Hardware Replacement|
|Response Period||SLA Credit|
|2 hours or less||N/A|
|2.1 to 6 hours||Five Percent ("5%")|
|6.1 to 10 hours||Ten Percent ("10%")|
|10.1 to 14 hours||Twenty Percent ("20%")|
|14.1 to 18 hours||Forty Percent ("40%")|
|18 hours +||One Hundred Percent ("100%")|
|Table B: Hardware Upgrade|
|Response Period||SLA Credit|
|2 hours or less||N/A|
|2.1 to 6 hours||Five Percent ("5%")|
|6.1 to 10 hours||Forty Percent ("40%")|
|10.1 to 14 hours||Sixty Percent ("60%")|
|14.1 to 18 hours||Eighty Percent ("80%")|
|18 hours +||One Hundred Percent ("100%")|