1. General. All terms not defined herein shall have the meanings attributed to them in the Master Service Agreement between Customer and Cybera (the “MSA”). Cybera commits to Customer that the SmartLink Service Orders shall conform to a level of performance as defined by and subject to the limitations set forth in this SmartLink Service Level Agreements (“SLA” or “SLAs”). Failure to comply with the SmartLink SLAs shall not constitute a default under the MSA and Customer’s sole and exclusive remedy for nonconformance with the terms of SmartLink SLAs shall be the credits specified by this SmartLink SLA. Unless otherwise specified, for purposes of this SLA , all references to SmartLink include SmartLink XT. All SLAs are subject to the provisions of Sections 8 and 10 of the MSA.
2. On-Site Response.
2.1. SLA for Response. For any failure of a SmartLink Service Order that requires work from a Cybera or subcontractor technician for repair, Cybera will have the appropriate personnel to complete the repair work at the Customer’s premise the next weekday (8am to 5pm local time) after the Cybera CSMC determines that onsite repair is required.
2.2. Credit Available. For each occurrence of a SmartLink Service Order failure where Cybera fails to have the personnel required to repair the failure at the Customer’s premise the next weekday (8am to 5pm local time) after the first occurrence of the failure, upon written request in accordance with Section 7 hereof, Customer will be eligible for a credit equal to 10% of the MRC paid in that month for the affected SmartLink Service Order.
3. Network Performance. Due to the nature of SmartLink Services, Cybera’s SmartLink Service is delivered on a best efforts basis and no SLAs are available for total network or individual site performance.
4. Security. Due to the nature of SmartLink Services and delivery via the Public Internet, there are no security SLAs available for Cybera’s SmartLink Service.
5. SLA Exclusions. SLAs do not apply to the extent that any of the following reasons prevented or delayed Cybera’s performance in meeting such SLAs:
5.1. Any act or omission, negligence or error of Customer, its employees, contractors, agents and/or any party authorized by Customer to use, modify or repair Customer’s Service;
5.2. Failure of power at Customer’s premise or failure of any equipment not provided by Cybera;
5.3. Customer’s maintenance activities or its rearrangement of the Service;
5.4. Cybera or its agents are not afforded access to the premises where the lines associated with Customer’s Service are terminated;
5.5. Customer has released Service to Cybera for maintenance or rearrangement purposes, or for the installation of a Customer Service Order;
5.6. Customer elects not to release the Service for testing and or repair and continues to use it on an impaired basis;
5.7. Force Majeure events as defined in Customer’s MSA;
5.8. Disconnection or failure to provide Services, repair or maintenance due to Customer’s non-payment of undisputed charges;
5.9. Incorrect or incomplete Service Orders from Customer;
5.10. Improper or inaccurate network specifications provided by Customer;
5.11. Failure of an underlying local exchange carrier where the local access circuit was not provided by Cybera;
5.12. Customer has exceeded the purchased circuit bandwidth;
5.13. Service Addresses have been in service for less than sixty (60) days as measured from the Service Commencement Date;
5.14. Cybera’s scheduled maintenance and downtime; and
5.15. Any other reason outside the reasonable control of Cybera.
6. Limitation on SLA Credits. The combined total of any SLA Credits applied to Service Orders provided to Customer pursuant to Customer’s MSA may not exceed:
6.1 For any calendar month, fifty percent (50% ) of the MRC billed to the Customer for such Service for that month;
6.2 For any calendar year, ten percent (10%) of the total annual revenue of the prior calendar year billed to the Customer by Cybera;
Cybera shall have no obligation to pay Customer any SLA Credits whatsoever in the event that Customer is or has been in breach or default of any term or condition of the MSA, any Annex thereto, or any Service Order during the period in which the circumstance giving rise to the SLA credit occurred.
7. Procedure for Requesting SLA Credits. To receive an SLA Credit, Customer must:
7.1 Complete the SLA Credit Request Form which can be downloaded at https://www.cybera.com/SLACR and submit it together with Complete Documentation (as defined in the MSA) to Cybera within thirty (30) calendar days of the last day of the month in which the circumstances giving rise to the SLA Credit occurred.
7.2 All SLA Credit Requests must, at a minimum, include:
7.2.1 A list of all impacted Service Addresses and the specific circuit identifier if more than one at the Service Address;
7.2.2 The type of SLA credit requested for each Service Order and circuit;
7.2.3 The date or dates on which the circumstance giving rise to the SLA credit requested occurred;
7.2.4 The trouble ticket number(s) on which the SLA is based; and
7.2.5 Any other information Cybera may reasonably request.
7.3 Cybera cannot guarantee that the information above will be sufficient to allow Cybera to verify the SLA Credit Request. Cybera will inform Customer of any SLA Credit Request that it rejects and Customer will have an additional fifteen (15) days to submit additional documentation supporting Customer’s position.