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 SmartNetwork Service Orders shall conform to a level of performance as defined by and subject to the limitations set forth in this SmartNetwork Service Level Agreements (“SLA” or “SLAs”). Failure to comply with the SmartNetwork SLAs shall not constitute a default under the MSA and Customer’s sole and exclusive remedy for nonconformance with the terms of SmartNetwork SLAs shall be the credits specified by this SmartNetwork SLA. Unless otherwise specified, for purposes of this SLA , all references to SmartNetwork include SmartNetwork XT. All SLAs are subject to the provisions of Sections 8 and 10 off the MSA.
2. Total Network Availability.
2.1. SLA for Total Network Availability. The Customer’s entire network of SmartNetwork Service Orders will yield an end-to-end network availability of at least 99.5%. Network Availability refers to the percentage of time during a calendar month that the Service is available for use by Customer across the Customer’s entire network. This SLA is only available for outages reported by the Customer through the opening of a trouble ticket with the Cybera CSMC and is measured from the time such trouble ticket is opened until the network is able to transmit and receive data according the Cybera’s records. The SLA percentage is measured over a 720-hour (30-day) month according to the following calculation, where Total Downtime is the sum of all downtime across all SmartNetwork Service Orders and Number of Orders is the total number of SmartNetwork Service Orders active during that month:
Network Availability = 1 – Total Downtime / (720 hours x Number of Orders)
2.2. SLA Credit Available. Should Cybera fail to deliver a Network Availability greater than or equal to 99.5% according to the above calculation, upon written request in accordance with Section 9 hereof, Customer will be eligible for a credit equal to 10% of the total SmartNetwork MRC paid in that month.
3. Individual Service Order Availability.
3.1. SLA for Individual Service Order Availability. Each individual SmartNetwork Service Order will yield a Service availability of at least 99.5%. This SLA is only available for outages reported by the Customer through the opening of a trouble ticket with the Cybera CSMC and is measured from the time such trouble ticket is opened until the network is able to transmit and receive data according the Cybera’s records. This percentage is measured over a 720-hour month (30 days) according to the following calculation, where Service Order Downtime is the total downtime that occurs for an individual SmartNetwork Service Order during that month:
Service Order Availability = 1 – Service Order Downtime / 720 hours
3.2. SLA Credit Available. Should Cybera fail to deliver a Service Order Availability greater than or equal to 99.5% according to the above calculation, upon written request in accordance with Section 9 hereof, Customer will be eligible for a credit equal to 10% of the MRC paid in that month for each SmartNetwork Service Order that fails to meet this minimum Service Order Availability.
4. Network Performance.
4.1. SLA for Network Performance. Cybera’s SmartNetwork Service Orders will yield a minimum level of performance. Each SmartNetwork Service Order will deliver a bit rate throughput of no less than 90% of the subscribed port speed bandwidth as measured over any 24-hour period.  Also, each SmartNetwork Service Order will produce a roundtrip latency of no more than 80 milliseconds as measured from the WAN port of the Customer’s router to Cybera’s SmartNetwork. This SLA is only available for performance issues reported by the Customer through the opening of a trouble ticket with the Cybera CSMC.
4.2. Credit Available. Should Cybera fail to deliver on either of these criteria during a month of Service, upon written request in accordance with Section 9 hereof, Customer will be eligible for a credit equal to 10% of the MRC paid in that month for the affected SmartNetwork Service Order.
5.1. SLA for Security. For Customers that use Cybera’s SmartNetwork Services as a private IP network according to Cybera’s design recommendations, Cybera certifies that no malicious activity from outside the Customer’s private network will gain access to the Customer’s network via the Cybera private network. This SLA is only available for security breaches reported by the Customer through the opening of a trouble ticket with the Cybera CSMC.
5.2. Credit Available. Should malicious outside activity cause harm to the Customer by access through Cybera’s network, upon written request in accordance with Section 9 hereof, Customer will be eligible for a credit equal to 10% of the MRC paid in that month for all SmartNetwork Service Orders. This SLA will not apply if Customer enables public Internet connectivity through Cybera or another provider, or fails to follow Cybera’s recommended design.
6. On-Site Response.
6.1. SLA for Response. For any failure of a SmartNetwork 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 Customer Service Management Center determines that onsite repair is required.
6.2. Credit Available. For each occurrence of a SmartNetwork 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) Cybera Customer Service Management Center determines that onsite repair is required, upon written request in accordance with Section 9 hereof, Customer will be eligible for a credit equal to 10% of the MRC paid in that month for the affected SmartNetwork Service Order.
7. 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:
7.1. 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;
7.2. Failure of power at Customer’s premise or failure of any equipment not provided by Cybera;
7.3. Customer’s maintenance activities or its rearrangement of the Service;
7.4. Cybera or its agents are not afforded access to the premises where the lines associated with Customer’s Service are terminated;
7.5. Customer has released Service to Cybera for maintenance or rearrangement purposes, or for the installation of a Customer Service Order;
7.6. Customer elects not to release the Service for testing and or repair and continues to use it on an impaired basis;
7.7. Force Majeure events as defined in Customer’s MSA;
7.8. Disconnection or failure to provide Services, repair or maintenance due to Customer’s non-payment of undisputed charges;
7.9. Incorrect or incomplete Service Orders from Customer;
7.10. Improper or inaccurate network specifications provided by Customer;
7.11. Failure of an underlying local exchange carrier where the local access circuit was not provided by Cybera;
7.12. Customer has exceeded the purchased circuit bandwidth;
7.13. Service Addresses have been in service for less than sixty (60) days as measured from the Service Commencement Date;
7.14. Cybera’s scheduled maintenance and downtime; and
7.15. Any other reason outside the reasonable control of Cybera.
8. 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:
8.1. For any calendar month, fifty percent (50% ) of the MRC billed to the Customer for such Service for that month;
8.2. 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.
9. Procedure for Requesting SLA Credits. To receive an SLA Credit, Customer must:
9.1. 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.
9.2. All SLA Credit requests must, at a minimum, include:
9.2.1 A list of all impacted Service Addresses and the specific circuit identifier if more than one at the Service Address;
9.2.2 The type of SLA credit requested for each Service Order and circuit;
9.2.3 The date or dates on which the circumstance giving rise to the SLA credit requested occurred;
9.2.4 The trouble ticket number(s) on which the SLA is based; and
9.2.5 Any other information Cybera may reasonably request.
9.3. 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.
 Due to the nature of ADSL Service Cybera does not offer the SLA contained in this sentence with respect to SmartNetwork ADSL or SmartNetwork XT ADSL.