The following provisions set forth the service levels (the “SLA”) that defines the criteria for ThinkOn’s Services and the credits available to Reseller in the event such SLA’s are not met:
Objective: During any calendar month, Services will be available 99.99% of the time.
Definition: ThinkOn’s Services will be “unavailable” if (i) ThinkOn’s infrastructure fails to respond to standard ICMP or SNMP requests issued by ThinkOn’s internal monitoring system, or (ii) such Services are identified as unavailable via phone call and in either case subsequent trouble shooting protocol provides confirmation of such unavailability.
Measurement: ThinkOn will proactively measure, without the requirement of Reseller or Subscriber notification, the “unavailability” of Services from the time of such unavailability until the time responsiveness to standard ICMP or SNMP requests issued by ThinkOn’s internal monitoring system is restored.
Remedy: If Services are not available in accordance with the Objective, ThinkOn will issue a credit to Reseller in an amount equal to 1/30th of the recurring base monthly fee paid by Reseller for the affected Services for the then current month for each half hour (or portion thereof rounded to the next half hour) of the cumulative duration of such unavailability during such month. In addition, ThinkOn shall provide a root cause analysis to Reseller to identify the steps to rectify in the future. In no event will the aggregate amount credited to Reseller under this SLA in any calendar month exceed the recurring base monthly fee paid by Reseller for such affected Services for such month.
B. NETWORK LATENCY
Objective: During any calendar month, the average round trip latency between any two agents within the ThinkOn IP network will not exceed 40 milliseconds.
Definition: Latency is defined as the round trip time it takes for a data packet to travel between two agents within the ThinkOn IP network. The term “Agents” refers to passive devices that are located in every facility containing ThinkOn service delivery infrastructure. Each Agent is placed on that facility’s network infrastructure to take measurements across such IP network.
Measurement: ThinkOn will proactively measure, without the requirement of Subscriber notification, latency based on polling by its network monitoring agents every minute and averaging latency of all monitoring samples during every 24-hour period.
Remedy: If average monthly latency is greater than the Objective above for any particular month, ThinkOn will issue a credit to Reseller for such month in an amount equal to 1/30th of the recurring base monthly fee paid by Reseller for the affected Service for such month for each 24-hour period affected. In no event will the aggregate amount credited to Reseller under this SLA in any calendar month exceed the recurring base monthly fee paid by Reseller for such affected Services for such month.
Objective: ThinkOn will respond to Subscriber or Reseller’s requests for technical support with respect to ThinkOn’s Services according to the following severity levels of support situations:
Emergency Support – “Emergency Support” refers to situations when Services are unavailable (as defined in Section A – Availability. ThinkOn will respond by phone to all requests for Emergency Support within 15 minutes.
Urgent Support – “Urgent Support” refers to situations when services are accessible, but functioning improperly or at a degraded state of performance (e.g., time outs or slow response), as determined by ThinkOn. ThinkOn will respond to all requests for Urgent Support within one hour.
Standard Support – “Standard Support” refers to situations when Services is accessible and is functioning properly and optimally, but Subscriber requires information or assistance of some kind or desires to schedule maintenance. ThinkOn will respond to all requests for Standard Support within 24 hours.
Measurement: ThinkOn’s “Response Time” will be measured from the time an internal alarm records an incident or Subscriber or Reseller call or chat formally opens an incident for the applicable support request to the time of attempted first contact with the Reseller or Subscriber pursuant to defined escalation procedures.
Remedy: If during any calendar month, ThinkOn fails to respond in accordance with the applicable objective above for the particular support situation, upon Reseller’s request, ThinkOn will issue a credit in the amount of CAD $100 for each such failure during such month. In no event will the aggregate amount credited to Reseller under this SLA and any other SLAs covering the affected Services in any calendar month exceed the recurring base monthly fee paid for such affected Services for such month.
D. TIME TO INITIATE DATA RESTORATION FROM DATA PROTECTION SERVICES
Objective: During any calendar month, the data protection infrastructure will be available to initiate the restoration of any Reseller or Subscriber requested data.
Definition: Data restoration means the ability to successfully initiate a restore within 60 minutes of restoration request. Restore initiation shall be identified as the time at which the first byte of Subscriber data is written to the restoration target.
Measurement: ThinkOn will measure success of data restoration initiation based upon reporting of the restoration request and initiation start times. ThinkOn uses software tools that identify and retain this information for reporting and performance measurement purposes.
Remedy: if the time to initiate a data restore exceeds 60 minutes then ThinkOn will issue a credit in the amount of 25% of the recurring base monthly fee paid by Reseller for the data protection services. In no event will the total amount credited under this Service Level Agreement in any calendar month exceed the base monthly recurring fee paid for the Data Protection Services for such month.
E. GENERAL SLA REMEDY PROVISIONS
The credits reflected herein shall be Reseller sole remedy if ThinkOn fails to meet a defined objective during the term of affected Service Order. Reseller is only eligible to receive an SLA credit for the primary or root cause SLA failure and only for the affected Services specifically identified in the remedy paragraph for such SLA; Reseller is not eligible to receive a credit for any other SLA failure(s) that flow(s) from, is/are caused by or is/are otherwise related to or associated with the primary or root cause SLA failure. In order to receive a credit reflected herein, Reseller must submit a request therefor to Requests@ThinkOn.com within seven days of the SLA failure to which such credit request relates. Each request must include Reseller account number, the description of the SLA failure and the dates and times of the SLA failure. Metrics or statistical information provided by Reseller concerning the applicable SLA and the reported failure will be evaluated by ThinkOn, but ThinkOn’s or its agent’s own metrics and statistical information will govern the final determination regarding whether any SLA failure occurred. If the unavailability or other SLA failure is confirmed by ThinkOn and Reseller is not in breach of the Agreement (including any of its payment obligations) at the time of such unavailability or other SLA failure, the applicable credit will be applied within two billing cycles after ThinkOn’s receipt of the credit request. Credits are not refundable and can only be applied to future billing charges.
Aggregate remedies (availability, network latency and support remedies) for a Billing Period cannot exceed the aggregate fees paid by the Reseller to ThinkOn for the corresponding Service Order’s preceding Billing Period.
ThinkOn shall not be responsible for the failure to meet an SLA to the extent the failure is caused by: (a) a breach of the Agreement or this or any other Addendum by Reseller or a Subscriber; (b) Subscriber data content or application programming, acts or omissions of Subscriber, or their employees or agents, or failures of equipment, software or facilities provided by Reseller or an Subscriber; (c) Reseller or Subscribers use of unsupported software or hardware releases; (d) software or hardware failures resulting from Reseller or Subscriber’s rejection or delay in implementation, for any reason, of an update, patch configuration change, maintenance change or repair recommended by ThinkOn; (e) any Scheduled Maintenance or Emergency Maintenance (including, without limitation, upgrades, repairs or component replacements) or other mutually agreed-to downtime; (f) any network outage, downtime or other unavailability due to causes outside of ThinkOn’s control, such as failure of communications networks; or (g) any event of force majeure as described in the Agreement. Think On will use commercially reasonable efforts to coordinate the resolution of the failure with the appropriate third part vendor.
As used herein, the term “Scheduled Maintenance” means upgrades, repairs, replacements or other modifications made for any purpose (including, but not limited to, to accommodate evolving technology and/or increased demand or to provide enhanced but equivalent [or alternative] services) to the facility, ThinkOn’s service delivery infrastructure used to provide the Services set forth on Service Order(s). All Scheduled Maintenance activities occur between 10:00 p.m. and 4:00 a.m. ”Maintenance Window” in the time zone where the service delivery infrastructure is located.
The term “Emergency Maintenance” means critical unforeseen maintenance needed for the security or performance of Subscriber’s configuration and/or ThinkOn’s service delivery infrastructure.
F. CERTAIN OBLIGATIONS OF THE PARTIES
- Maintenance Notification. ThinkOn will notify Resellers and Subscribers of any required Scheduled Maintenance to ThinkOn’s service delivery infrastructure a minimum of 10 calendar days prior to the date identified to perform the Scheduled Maintenance, except in the event of an emergency upgrade (which ThinkOn will make as promptly as practicable as part of Emergency Maintenance), ThinkOn will perform all Scheduled Maintenance during the Maintenance Window. ThinkOn will use reasonable efforts to contact Subscriber’s technical personnel prior to performing any Emergency Maintenance to ThinkOn’s Services delivery infrastructure.
- Access to Services Administration. ThinkOn will manage all system administration and device passwords for its service delivery infrastructure; Reseller or Subscriber will have no access to such infrastructure.
- Security. RESELLER ACKNOWLEDGES AND AGREES THAT THE SECURITY SOLUTIONS PROVIDED AS PART OF THE SERVICES (INCLUDING AS DESCRIBED IN THE AGREEMENT, INCLUDING SCHEDULE “D”) DO NOT GUARANTEE 100% NETWORK SECURITY OR PREVENT SECURITY INCIDENTS, ARE NOT INTENDED TO BE A COMPREHENSIVE SECURITY SOLUTION AND ARE SERVICES FOR WHICH THINKON LIMITS ITS LIABILITY AND DISCLAIMS WARRANTIES TO THE EXTENT PROVIDED IN THE AGREEMENT.
- Subscriber-Provided Materials. Except as expressly provided in the Agreement, ThinkOn will not have any responsibility for any content, data, or Subscriber-Provided Materials. Reseller will not be permitted to locate any equipment at the ThinkOn data centre without purchasing ThinkOn’s EdgeConnect service. Reseller agrees that it will make and maintain current backup copies of all of its content and data.
- Use of Software. Reseller shall ensure Subscriber properly trains its personnel in the usage of the Software and agrees to use the Software only in connection with permitted use of the Services and only in accordance with the end user license agreement applicable to such Software. Reseller is solely responsible for any damage to the Software and any degradation in or outage of the Services due to acts or omissions of Subscriber, their agents or third party providers, including, without limitation, any such issues arising in connection with the installation of any Software or upgrades, patches, hot fixes and other updates to the Software, or the addition, deletion or modification of any Subscriber-Provided Material. Any degradation in or outage of the Services as a result of the foregoing acts or omissions shall be excepted from measurement under any applicable SLA.
- Bandwidth Usage. ThinkOn’s InternetConnect provides Subscriber with a dedicated IP connection of committed data transfer capacity (as defined in the Service Order). Monthly charges are based on contracted InternetConnect Service and overage charges incurred during the prior billing period. .; Overage charges are determined using data transfer measurements taken every five minutes over the course of a month. The actual overage charges will be based on the 95th percentile measurement of actual usage minus the contracted Transit charges.
- IP Numbers and Addresses. ThinkOn shall maintain and control ownership of all IP numbers and addresses that may be assigned to Subscriber by ThinkOn and ThinkOn reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses; provided, however, that (a) ThinkOn will provide Reseller with at least thirty days prior written notice of any such change or removal and (b) Reseller agrees to provide ThinkOn with all reasonably requested assistance to effect any such change or removal.
- Authorized Personnel and Escalation. Reseller shall also provide to ThinkOn (and keep current) via ThinkOn portal (a) a list of personnel that are authorized to act on behalf of Subscriber in connection with the Services (the “Authorized Access List”), including requesting any changes to or any support in connection with such Services, and (b) escalation procedures and information within Reseller’s organization for resolving matters related to the Services. Only persons on the Authorized Access List may open trouble tickets with respect to the Services or otherwise obtain support or other information from ThinkOn support concerning such Services. If ThinkOn’s personnel or systems are unable to reach the contacts as set forth in the authorized access list, ThinkOn will escalate its notification according to instructions set forth in the Reseller-provided escalation procedures.
- Report of Service Failures and Device Changes. Reseller shall make commercially reasonable efforts to report to ThinkOn support all suspected failures of the Services. At the time of such reporting, ThinkOn support may require Reseller to provide information to aid ThinkOn’s diagnosis and resolution efforts, including without limitation (a) the name and contact information of the reporting person, (b) symptoms of the suspected failure, (c) any testing done by Subscriber with respect to the suspected failure, and (d) whether the affected Services may be temporarily suspended by ThinkOn for testing purposes. Reseller shall promptly notify ThinkOn if Reseller or Subscriber makes any changes to its device(s) operating within ThinkOn’s Services delivery infrastructure that may require ThinkOn to modify any then present configurations of such Services. ThinkOn shall be entitled to invoice Reseller, and Reseller hereby agrees to pay, additional charges associated with all such ThinkOn modifications.
- Post Termination Data Access. A subscriber may elect to store their data within the service delivery infrastructure for a time period that exceeds the contractual term. This data will be retained in immutable form for so long as the Subscriber continues to pay for the fees associated with storing this data and the access mechanism used to reach it. In the event the Subscriber defaults any of its contractual obligations a remediation of period of no less than 60 days will be presented to the Subscriber during which time the associated data will continue to be accessible in a read-only format.
- Data Destruction. ThinkOn will dispose of all Subscriber data using a process consistent with the DoD 5220.22-M standard. Prior to any data being destroyed ThinkOn will secure written approval from the Subscriber. The Subscriber can determine the overall retention period of the data in accordance with the terms outlined in above.
- Subscriber Provided Encryption. Reseller shall ensure their Subscriber is responsible for maintenance all Subscriber provided data encryption technology and protect all data encryption keys used to encrypt Subscriber data with the Subscriber provided encryption technology. ThinkOn will provide assistance to a Subscriber that has lost an encryption key but at no time is ThinkOn responsible for the recovery of a lost encryption key.