Capcon Networks SLA
DIA SERVICES
SERVICE SCHEDULE
This DIA Services Service Schedule (“Schedule”), including Service Level Agreement (“SLA”), is incorporated into and made a part of all relevant Service Orders (“SOF”) between Capcon Networks and Customer (“Client”), and, where applicable, the Master Service Agreement (“MSA” or “Agreement”) between Capcon Networks and the Client. This Schedule sets forth the specific terms and Service level parameters that will apply to the DIA Services provided by CAPCON NETWORKS to the Client. All terms defined on the SOF and, where applicable, the MSA, shall have the same meaning when referred to in this Schedule.
1. SCOPE OF DOCUMENT AND OBJECTIVES
The terms of this Schedule are understood to supplement the MSA and SOF, and if there is any inconsistency or ambiguity
between these documents, such inconsistency or ambiguity shall be resolved pursuant to the order of precedence defined in the
MSA. This Schedule shall apply only to those Clients of CAPCON NETWORKS who are connected to CAPCON NETWORKS’s
network via a dedicated connection.
These objectives shall not result in any additional liability to CAPCON NETWORKS beyond the remedies or recourse expressly
set forth in this Schedule, and the Client expressly understands and agrees that the remedies set forth in this Schedule shall be
the sole and exclusive recourse and/or remedy with respect to any claim in any way related to or arising from any delay, outage,
degradation or noncompliance of the Service.
2. DEFINITIONS
2.1. “Allocated MRC” means for a multipoint Service, a portion of a Monthly Recurring Charge allocated by Service and/or each Client location as specified on an SOF, and if not so specified on an SOF, then prorated based on the capacity of the affected location or, alternatively, the number of locations associated with the Service as determined at CAPCON NETWORKS’s sole discretion.
2.2. “Availability” is defined as the percentage of time during which the Services are operating within normal parameters and are usable by the Client.
2.3. “Backbone” is defined as those connections running between international hubs on CAPCON NETWORKS’s wholly owned privatenetwork.
2.4. “Bandwidth Commitment” is the Client’s commitment in a given month to pay for a certain level of Bandwidth. The Client agrees to pay the MRC specified on the SOF as a minimum monthly charge regardless of whether actual usage is lower. A Bandwidth Commitment must be specified on an SOF to be applicable.
2.5. “Burst Bandwidth” is the amount of Bandwidth usage based on the 95th Percentile Calculation in excess of a Bandwidth Commitment. Any usage in excess of the Bandwidth Commitment will incur an additional burst usage charge based on the 95th Percentile Calculation.
2.6. “Emergency Maintenance” refers to any emergency maintenance work CAPCON NETWORKS conducts without any prior notice to the Client.
2.7. “Latency” is the round-trip delay of packets between designated pairs of CAPCON NETWORKS PoPs or other defined endpoints.
2.8. “Mean Time to Restore” (MTTR) is the mean elapsed time to restore any interrupted Services during the course of a month.
2.9. “Point of Demarcation” is the NNI and/or UNI interface port where CAPCON NETWORKS hands off Service to the Client, except as otherwise specified on an SOF.
2.10. “POP” means Point of Presence.
2.11. “Regional Internet Registry” refers to the five (5) Internet registries responsible for the allocation and registration of Internet numbers. These registries are AfriNIC, APNIC, ARIN, LACNIC and RIPE NCC.
2.12. “RFS Date” or “Ready for Service Date” shall be as defined in the Services Terms and Conditions. Capcon Networks DIA SLA– 3.17 v.2 Proprietary and Confidential page 2/7
2.13. “Scheduled Maintenance” refers to any maintenance work planned by CAPCON NETWORKS with prior notification to the Client on its network (or portion thereof) to which the Client is connected and that is performed during a standard maintenance window, from 2:00 am to 6:00 am (local time in the region).
2.14. “Third-Party Service(s)” refers either to the third-party circuit(s) (e.g., leased line(s)) that connect the Client’s premises to CAPCON NETWORKS’s network) or any Managed Telecoms Services (e.g., rack colocation, on-site support Services) purchased by CAPCON NETWORKS in order to serve as a one-stop shop for the Client.
2.15. “Total Time” is the total period of time against which the Service Availability time is measured/evaluated (over a onecalendar-month period). This excludes any Service outage defined within Section 12.
2.16. “Unavailable Time” consists of the number of minutes that CAPCON NETWORKS's network is unavailable. The network is considered unavailable when unscheduled Maintenance or an outage prevents CAPCON NETWORKS from providing the Client with the ordered Service. This excludes any Service outage defined within Section 12 of this Schedule. The time period begins when CAPCON NETWORKS opens a trouble ticket following the report of a problem by the Client and lasts until the time the ticket is closed. In cases where CAPCON NETWORKS delivers a given Service over multiple ports, the Service is considered unavailable only if CAPCON NETWORKS ’s network is unavailable through all Client ports.
2.17. “95th Percentile Calculation” is the calculation method used to measure Bandwidth usage for SOFs that specify Burst Bandwidth. Samples of average Bandwidth utilization rates of both inbound and outbound traffic from the Client port(s) are collected in five (5)-minute intervals over a calendar month. The five (5)-minute data samples for each direction (inbound or outbound) are sorted from highest to lowest in amount of Mbps. The highest five percent (5%) of samples in each direction are discarded, and the highest remaining sample taken from either direction is used as the 95th percentile value.
3. SERVICE DELIVERY OBJECTIVE
3.1. Order Acknowledgement. CAPCON NETWORKS will notify the Client (in writing or electronically) upon receipt of an accepted SOF (“Order Acknowledgement Letter”). CAPCON NETWORKS will send to the Client an “Estimated in Service Date” letter (in writing or electronically) providing an estimated date for Service activation.
3.2. Firm Order Commitment Date. CAPCON NETWORKS shall notify the Client of the Firm Order Commitment date by which CAPCON NETWORKS intends to activate the Service and turn it over for the Client’s use (“FOC Date”). The Client may request a change to the FOC Date no later than fifteen (15) business days before the FOC Date by providing advance written notice to CAPCON NETWORKS, subject to the terms and conditions specified herein. The Client may submit a request to extend the FOC Date on one occasion per SOF for a period up to a maximum of thirty (30) days from the original FOC Date. The Client shall be liable to CAPCON NETWORKS for a one-time payment of five hundred dollars ($500) for each request to change an FOC Date, plus any additional charges for Third-Party Services incurred by CAPCON NETWORKS in connection with the delayed FOC Date.
3.3. Service Activation. After CAPCON NETWORKS has determined that the Service conforms to the relevant Service Specifications, CAPCON NETWORKS will notify the Client that the Service is activated, meets the Service Specifications and is available for use by the Client (“Start of Service Letter”). The “Start of Service Date” shall be the earlier of (i) the date on which the Client begins using the Service for any purpose other than testing, or (ii) the date on the “Start of Service Letter.” The Client shall have two (2) days in which to notify CAPCON NETWORKS that it is rejecting the Service
because the Service does not meet the Service Specifications. The Client’s failure to test or delay in testing the Service or failure to utilize or delay in utilizing the Service on or after the Service Activation Notice date shall not prevent CAPCON NETWORKS from billing the Client for the Service.
Incrementally Delivered Services. Unless otherwise specified on an SOF, CAPCON NETWORKS may incrementally deliver individual Services when ready, which may result in different Service Activation Dates for such incrementally delivered Services. For multipoint Services, CAPCON NETWORKS may incrementally deliver Service to each Client location when ready. Billing for incrementally delivered multipoint Services shall begin on the Start of Service Date of the first location and/or circuit delivered and shall end after the period specified as the Service Term from the Start of Service of the last location and/or circuit delivered. Unless otherwise set forth on an SOF, the charges associated with a delivered Service will be based upon Section 2.1.
3.4. Expedite Charges. The Client will incur an expedite charge of $1,000 plus third- party expenses for Services requested outside of standard provisioning intervals.
4. SERVICE AVAILABILITY OBJECTIVE
4.1. CAPCON NETWORKS guarantees Service Availability on a monthly basis. Unless otherwise noted in the terms of a Capcon Networks DIA SLA– 3.17 v.2 Proprietary and Confidential page 3/7 specific SLA, the Service Availability objective applicable to any CAPCON NETWORKS Service falls into one of the following categories:
4.2. Availability is calculated monthly on a per-circuit/-Service basis using the following formula and expressed as a percentage:
4.3. The Service shall be considered Available until the date/time of CAPCON NETWORKS’s receipt of notification from the Client that the Service has been interrupted. A Service will be considered unavailable if the Service experiences a complete or material loss of Service, subject to the exclusions set out below (a “Service Outage”). The measurement period for determining the Service Unavailability shall commence upon CAPCON NETWORKS’s receipt of notification from the Client of the Service Unavailability and shall conclude upon the date/time of Service restoration. Clients must always report any fault or quality issue with any Service to CAPCON NETWORKS’s Network Operation Center (“NOC”).
4.4. Credits will only be provided for failure to meet the Availability levels set forth above. CAPCON NETWORKS will aggregate the total Unavailable Times per month on a per-circuit/-Service basis and credit the resulting amount to the Client for the affected Services. With respect to any Service Outages that entitle the Client to receive a credit, the amount of the credit will be calculated as follows based on the duration of Unavailable Time beyond the applicable threshold time:
DURATION CREDIT
00:00:01-02:00:00 5% of MRC
02:00:01-04:00:00 10% of MRC
04:00:01-08:00:00 20% of MRC
08:00:01-12:00:00 30% of MRC
12:00:01-24:00:00 40% of MRC
24:00:01+ 50% of MRC
5. OUTAGE REPORTING OBJECTIVE
CAPCON NETWORKS’s NOC will make reasonable efforts to inform the Client of any general systems outage that may have affected the Client’s Service within thirty (30) minutes of its first awareness of the above- mentioned outage. CAPCON NETWORKS will make reasonable attempts to notify and inform the Client by submitting such notification via the telephone, fax, or e-mail details listed in the Agreement. To facilitate such notification, it is the Client’s responsibility to ensure that CAPCON
NETWORKS and CAPCON NETWORKS’s NOC have any and all updated contact information for the Client, namely, all telephone and fax numbers and e-mail addresses for all Client notifications regarding disruption of Service.
6. MEAN TIME TO REPAIR (“MTTR”) OBJECTIVE
CAPCON NETWORKS will commit to the industry standard MTTR of four (4) hours or under for outages affecting its network. Any downtime against MTTR will be counted toward Service Unavailability, and Service credits will be applicable per Service Availability Objectives.
MTTR calculation (i.e. for the average repair time for the month) unavailability begins when the outage occurs (i.e. when the ticket is opened). This is different than Service Unavailability, which is a per incident SLA, unavailability does not occur until we have exceeded the SLA threshold (however many minutes and seconds).
7. SCHEDULED MAINTENANCE OBJECTIVE
Capcon Networks DIA SLA– 3.17 v.2 Proprietary and Confidential page 4/7
7.1. It may occasionally be necessary for CAPCON NETWORKS to carry out essential maintenance or network upgrades. Scheduled Maintenance shall generally occur no more than five (5) times in any given calendar month and is generally performed between 2:00 and 6:00 am local time in the region where the Service is located and/or performed. CAPCON NETWORKS will use commercially reasonable efforts to keep Scheduled Maintenance to a minimum and assure the availability of its Backbone.
7.2. Except in the event of an emergency or a Force Majeure Event, CAPCON NETWORKS and the Client will use commercially reasonable efforts to apply the following procedures with respect to ScheduledMaintenance:
7.2.1. CAPCON NETWORKS will provide the Client with at least ten (10) business days’ notice of any planned work that will affect the availability of Service except in case of emergency maintenance work on the network.
7.2.2. The Client will confirm to CAPCON NETWORKS within two (2) business days that the Scheduled Maintenance proposals are acceptable. A lack of response from the Client shall be deemed as acceptance.
7.2.3. Where possible, CAPCON NETWORKS will provide the Client with Scheduled Maintenance proposals, and confirmation details should be exchanged by fax/e-mail/telephone as provided in the Agreement.
7.2.4. Where feasible and possible, CAPCON NETWORKS will make temporary alternative arrangements during Scheduled Maintenance to avoid a break in the Client’sService.
7.2.5. CAPCON NETWORKS will give notice of Scheduled Maintenance to the named contacts of the Client defined in the Agreement.
7.2.6. The Client shall use commercially reasonable efforts to give CAPCON NETWORKS advance notice of any event of which the Client is aware at its end.
8. LATENCY OBJECTIVES
8.1. The Round-Trip Time objectives CAPCON NETWORKS commits to deliver on each route, on average, are indicated in followingtable:
8.2. These figures are measured by averaging sample tests made every thirty (30) minutes during a calendar month between two defined Backbone routers.
8.3. Should the round-trip packet delay time be exceeded for one week during a given month, CAPCON NETWORKS shall credit the Client two percent (2%) of the Service Fees for the affected month.
9. PACKET DELIVERY OBJECTIVE
Capcon Networks DIA SLA– 3.17 v.2 Proprietary and Confidential page 5/7
9.1. CAPCON NETWORKS guarantees Packet Delivery on a monthly basis. CAPCON NETWORKS’s regularly measured average Packet Delivery within its Backbone nodes shall exceed 99.9%.
9.2. Packet Delivery is the percentage of packets successfully sent and received between designated pairs of core routers across CAPCON NETWORKS’s network. Packet Delivery is computed as the average of the Packet Delivery samples over the course of a month.
9.3. Should this Packet Delivery level fall below the objective for one week during a given month, CAPCON NETWORKS shall credit the Client two percent (2%) of the monthly Service Fees for the affected Service.
10. EXCLUSION FROM SERVICE OBJECTIVES
10.1. Unavailable Time shall exclude periods when Service outages arise from or are otherwise indirectly caused by:
10.1.1. Service outage periods due to any cause other than faults in the CAPCON NETWORKS network, including faults or negligence of the Client or problems associated with equipment connected on the Client's side of the CAPCON NETWORKS Service delivery point.
10.1.2. In cases where the Client’s premises equipment impacts or otherwise causes alterations to the quality of the Service or malfunctioning in the network, CAPCON NETWORKS will proceed to disconnect the link for the benefit of the other users of the network, and such disconnection will not be the basis for any Service credit under the SLA. CAPCON NETWORKS will notify the Client as soon as possible in such event in order to allow the Client to repair or address the problems.
10.1.3. Outage periods reported by the Client in which no fault is observed or confirmed by CAPCON NETWORKS.
10.1.4. Any fault period during which Service is suspended pursuant to the terms of the Agreement.
10.1.5. Downtime when CAPCON NETWORKS technical staff cannot have access to the Client’s facilities, premises, or equipment when requested by CAPCON NETWORKS for the purpose of investigating the problem and restoring the Service, including those cases where the Service includes the management by CAPCON NETWORKS of equipment on the Client’s site.
10.1.6. The Client requests that CAPCON NETWORKS upgrade the capacity of the Service, if this operation results in an outage. Such an upgrade is subject to a new Order signed by the Parties, who will have agreed in advance on the operation date of such an upgrade.
10.2. No Service credit shall apply:
10.2.1. During Scheduled Maintenance affecting the Service as defined under Service Maintenance Objectives.
10.2.2. For any use made by the Client of a transmission capacity prior to the RFS Date.
10.2.3. Performance degradations and Service loss due to Denial Of Service attacks or other unlawful attacks generated inside the Client's network or executed against users inside the Client's network or the Client’s network infrastructure will be excluded from SLA calculation, as it is within the Client's responsibility to put in place the relevant protection mechanisms inside its network to protect itself and its Clients.
10.2.4. Nevertheless, CAPCON NETWORKS is available to support the Client by implementing appropriate measures on CAPCON NETWORKS’s network, such as limiting ICMP Bandwidth, rate limiting over Clients’ ports, implementing filters, or black-holing routes.
10.2.5. In case of service disruption due to a Force Majeure event as defined in the Capcon Networks’ Terms and Conditions applicable to the SOF.
11. CHRONIC SERVICE OUTAGE
A Chronic Service Outage will be deemed to have occurred only if the Customer experiences four (4) or more related Service Outages resulting in loss of service for at least three (3) hours each within any calendar month period and only when the Service Outage is not the result of (i) the fault or negligence of Customer; (ii) the failure of interconnecting facilities or other equipment not part of CAPCON NETWORKS Service or facilities or not within CAPCON NETWORKS’s or its supplier’s reasonable control; (iii) Scheduled Maintenance; (iv) Denial or Service (DoS) or Distributed Denial of Service (DDoS) attacks. In the event that there is a Chronic Service Outage, Customer may upon written notice to CAPCON NETWORKS, immediately terminate the affected on-net Services only if (i) Customer notifies in writing CAPCON NETWORKS through CAPCON NETWORKS NOC trouble ticket system; and (ii) Customer provides written notice with respect to such termination to CAPCON NETWORKS within thirty (30) days following the eligible service outage entitling Customer to terminate in Capcon Networks DIA SLA– 3.17 v.2 Proprietary and Confidential page 6/7 accordance with this Section. In case of such termination, Customer will be responsible for all amounts due up to the date of termination. For off-net services, CAPCON NETWORKS will have thirty (30) days following receipt of Customer’s written notification of the Chronic Service Outage through the CAPCON NETWORKS NOC trouble ticket system to evaluate and prescribe resolution, including a timeline to complete the prescribed repairs (“Cure Period”). If CAPCON NETWORKS is unable to resolve the Chronic Service Outage within the Cure Period, Customer shall have the right to terminate the affected
Service if Customer provides written notice with respect to such termination to CAPCON NETWORKS within thirty (30) days following the Cure Period. In case of such termination, Customer will be responsible for all amounts due up to the date of termination. CAPCON NETWORKS shall make commercially reasonable efforts to obtain and pass-through any cancelation rights from its underlying vendor for any off-net Chronic Service Outage.
12. GENERAL TERMS APPLYING TO CREDITS
12.1. As a condition of entitlement to a credit, the Client must report any Service Outage during the affected period, including by way of opening a trouble ticket, and cooperate in resolving any such problems.
12.2. The Client must submit credit requests in writing within thirty (30) calendar days following the event i n which entitlement to a credit arose.
12.3. The provision of credits under this Service Order is the Client’s sole and exclusive remedy and CAPCON NETWORKS’s sole obligation in connection with a failure to meet the stated Service Level Objective.
13. THIRD-PARTY SERVICES
CAPCON NETWORKS will always grant the Client the same credit rights that a Third-Party Provider grants to CAPCON NETWORKS. Upon receipt of a Third- Party Provider’s Service credits, CAPCON NETWORKS will credit the Client in a proactive way.
14. ACCEPTABLE USE POLICY (“AUP”)
14.1. The Client shall comply with CAPCON NETWORKS’s acceptable use policy (“AUP”) as applicable during theterm of this Agreement.
14.2. CAPCON NETWORKS reserves the right to modify and amend the AUP according to its Network requirements.
15. MISCELLANEOUS
15.1. The Client acknowledges and agrees that the objectives set forth in this Schedule do not constitute guarantees, commitments, or warranties of any kind whatsoever under applicable law, and the Client shall not receive or be entitled to any further remedy or compensation for any Service outage, delay, or noncompliance beyond that expressly set forth in this Schedule, and any other liability, loss, damage, or cost incurred by the Client as a result of any Service outage is hereby expressly disclaimed and waived by the Client as an express condition for CAPCON NETWORKS’s provision of the Service.
15.2. Contract penalties shall be paid to the Client via Credit Note in a proactive way for Service Availability objectives.
15.3. The Client shall not receive more than one Service credit request with respect to any one given incident, e.g., CAPCON NETWORKS will not allow separate credits for the Backbone not being accessible AND the maximum round-trip time being exceeded for that given month.
15.4. Service credits to the Client shall not exceed 100% of the contracted monthly charges incurred by the Client for the specific Service or installation in question. For multipoint or bundled Services, the Service credits to the Client shall not exceed the Allocated MRC for the affected Service.
15.5. Should CAPCON NETWORKS require additional information from the Client, the 10-day notification period for the Client shall begin upon receipt of all information required by CAPCON NETWORKS.
15.6. When the Service credit request is submitted, the Client shall nevertheless pay its entire Service bill and shall not withhold or deduct any Service credits it would anticipate receiving from CAPCON NETWORKS.
15.7. In case of an early termination of the Agreement, Service credits will be calculated on a pro-rata basis, and no further credits will be payable.
15.8. CAPCON NETWORKS shall have no liability to the Client’s end user and/or carrier customers arising from or relating to this Schedule.
16. POLICY CHANGES
CAPCON NETWORKS, at its sole discretion or upon request of a local or national authority, shall be entitled to change, amend or revise this policy at any time and for any reason by providing written notice thereof to the Client in accordance with the notice provisions in the Agreement.
17. Force Majeure
Neither Party will be in default or otherwise liable for any Service Outage, delay, or failure of its performance under this MSA or any Service Order to the extent such Service Outage, delay, or failure to perform arises by reason of any cause or circumstance beyond the reasonable control of the affected Party, including but not limited to, reason of act of God, the elements, adverse weather conditions, fire, flood, riots, strikes, accident, war, governmental requirement or any action of government in its sovereign capacity, act of civil or military authority, action or inaction of a supplier or other third party (including but not limited to failure of an underlying third party provider to timely process an application), fiber or cable cut, subsea fiber damage, inability to secure materials, labor or transportation (each constituting an “Force Majeure”).
WAN (LAYER 3 MPLS & LAYER 2 VPLS) SERVICE LEVEL AGREEMENT
This WAN Services Service Schedule (“Schedule”), including Service Level Agreement (“SLA”), is incorporated into and made a part of all relevant Service Orders (“SOF”) between CAPCON NETWORKS and the Client (“Client”), and, where applicable, the Master Service Agreement (“MSA” or “Agreement”) between CAPCON NETWORKS and the Client. This Schedule sets forth the specific terms and Service level parameters that will apply to the WAN Services provided by CAPCON NETWORKS to the Client. All terms defined on the SOF and, where applicable, the MSA shall have the same meaning when referred to in this Schedule.
1. SCOPE OF DOCUMENT AND OBJECTIVES
The terms of this Schedule are understood to supplement the MSA and SOF, and if there is any inconsistency or ambiguity between these documents, such inconsistency or ambiguity shall be resolved pursuant to the order of precedence defined in the MSA. This Schedule shall apply to those Clients of CAPCON NETWORKS who are connected to CAPCON NETWORKS’ network via a dedicated connection
These objectives shall not result in any additional liability to CAPCON NETWORKS beyond the remedies or recourse expressly set forth in this Schedule, and the Client expressly understand and agrees that the remedies set forth in this Schedule shall be the sole and exclusive recourse and/or remedy with respect to any claim in any way related to or arising from any delay, outage, degradation or noncompliance of the Service.
2. DEFINITIONS
2.1. “Allocated MRC” means for a multipoint Service, a portion of a Monthly Recurring Charge allocated by Service and/or each Client location as specified on an SOF, and if not so specified on an SOF, then prorated based on the capacity of the affected location or, alternatively, the number of locations associated with the Service as determined at CAPCON NETWORKS’ sole discretion.
2.2. “Availability” is defined as the percentage of time during which the Services are operating within normal parameters and are usable by the Client.
2.3. “Backbone” is defined as those connections running between hubs on CAPCON NETWORKS’ network.
2.4. “Bandwidth Commitment” is the Client’s commitment in each month to pay f or a certain level of Bandwidth. The Client agrees to pay the MRC specified on the SOF as a minimum monthly charge regardless of whether actual usage is lower. A Bandwidth Commitment must be specified on an SOF to be applicable.
2.5. “Burst Bandwidth” is the amount of Bandwidth usage based on the 95th Percentile Calculation more than a Bandwidth Commitment. Any usage more than the Bandwidth Commitment will incur an additional burst usage charge based on the 95th Percentile Calculation where applicable.
2.6. “Emergency Maintenance”refers to any emergency maintenance work CAPCON NETWORKS conducts without any prior notice to the Client.
2.7. “Latency” is the round-trip delay of packets between designated pairs of CAPCON NETWORKS POP’s or other defined endpoints.
2.8. “Mean Time to Restore” (MTTR) is the mean elapsed time to restore any interrupted Services during a month.
2.9. “Point of Demarcation” is the NNI and/or UNI interface port where CAPCON NETWORKS hands off service to the Client, except as otherwise specified on an SOF.
2.10. “POP” means Point of Presence.
2.11. “RFS Date” or “Ready for Service Date” shall be as defined in the Services Terms and Conditions.
2.12. “Scheduled Maintenance” refers to any maintenance work planned by CAPCON NETWORKS with prior notification to the Client on its network (or portion thereof) to which the Client is connected and that is performed during a standard maintenance window, from 2:00 am to 6:00 am (local time in the region).
2.13. “Third-Party Service(s)” refers either to the third-party circuit(s) (e.g., leased line(s)) that connect the Client’s premises to CAPCON NETWORKS’ network) or any Managed Telecoms services (e.g., rack colocation, on-site support services) purchased by CAPCON NETWORKS in order to serve as a one-stop shop for the Client.
2.14. “Total Time” is the total period against which the Service Availability time is measured/evaluated (over a onecalendar-month period). This excludes any Service outage defined within Section 12.
2.15. “Unavailable Time” consists of the number of minutes that CAPCON NETWORKS' network is unavailable. The network is considered unavailable when unscheduled Maintenance or an outage prevents CAPCON NETWORKS from providing the Client with the ordered Service. This excludes any Service outage defined within Section 12 of this Schedule. The time period begins when CAPCON NETWORKS opens a trouble ticket following the report of a problem by the Client and lasts until the time the ticket is closed. In cases where CAPCON NETWORKS delivers a given Service over multiple ports, the Service is considered unavailable only if CAPCON NETWORKS’s network is unavailable through all Client ports.
2.16. “Ninety-Fifth Percentile Calculation” is the calculation method used to measure Bandwidth usage for SOFs that specify Burst Bandwidth. Samples of average Bandwidth utilization rates of both inbound and outbound traffic from the Client port(s) are collected in five (5)-minute intervals over a calendar month. The five (5)-minute data samples for each direction (inbound or outbound) are sorted from highest to lowest in amount of Mbps. The highest five percent (5%) of samples in each direction are discarded, and the highest remaining sample taken from either direction is used as the 95th percentile value.
3. SERVICE DELIVERY OBJECTIVE
3.1. Order Acknowledgement. CAPCON NETWORKS will notify the Client (in writing or electronically) upon receipt of an accepted SOF (“Order Acknowledgement Letter”). CAPCON NETWORKS will send to the Client an “Estimated in Service Date” letter (in writing or electronically) providing an estimated date for Service activation.
3.2. Firm Order Commitment Date. CAPCON NETWORKS shall notify the Client of the Firm Order Commitment date by which CAPCON NETWORKS intends to activate the Service and turn it over for the Client’s use (“FOC Date”). The Client may request a change to the FOC Date no later than fifteen (15) business days before the FOC Date by providing advance written notice to CAPCON NETWORKS, subject to the terms and conditions specified herein. The Client may submit a request to extend the FOC Date on one occasion per SOF for a period up to a maximum of thirty (30) days from the original FOC Date. The Client shall be liable to CAPCON NETWORKS for a one-time payment of five hundred dollars ($500) for each request to change an FOC date, plus any additional charges for Third-Party Services incurred by CAPCON NETWORKS in connection with the delayed FOC Date.
3.3. Service Activation. After CAPCON NETWORKS has determined that the Service conforms to the relevant Service Specifications, CAPCON NETWORKS will notify the Client that the Service is activated, meets the Service Specifications and is available for use by the Client (“Start of Service Letter”). The “Start of Service Date” shall be the earlier of (i) the date on which the Client begins using the Service for any purpose other than testing, or (ii) the date on the “Start of Service Letter.” The Client shall have two (3) days in which to notify CAPCON NETWORKS that it is rejecting the Service because the Service does not meet the Service Specifications. The Client’s failure to test or delay in testing the Service or failure to utilize or delay in utilizing the Service on or after the Service Activation Notice date shall not prevent CAPCON NETWORKS from billing the Client for the Service.
Incrementally Delivered Services. Unless otherwise specified on an SOF, CAPCON NETWORKS may incrementally deliver individual Services when ready, which may result in different Service Activation Dates for such incrementally delivered Services. For multipoint Services, CAPCON NETWORKS may incrementally deliver Service to each Client location when ready. Billing for incrementally delivered multipoint Services shall begin on the Start of Service Date of the first location and/or circuit delivered and shall end after the period specified as the Service Term from the Start of Service of the last location and/or circuit delivered. Unless otherwise set forth on an SOF, the charges associated with a delivered service will be based upon Section 2.1.
3.4. Expedite Charges. The Client will incur an expedite charge of $1,000 plus third-party expenses for services requested outside of standard provisioning intervals.
4. SERVICE AVAILABILITY OBJECTIVE
4.1. CAPCON NETWORKS guarantees ServiceAvailability on a monthly basis. Unless otherwise noted in the terms of a specific SLA, the
Service Availability objective applicable to any CAPCON NETWORKS Service falls into one of the following categories:
4.2. Availability is calculated monthly on a per-circuit/-Service basis using the following formula and expressed as a percentage:
4.3. The Service shall be considered Available until the date/time of CAPCON NETWORKS’ receipt of notification from the Client that the Service has been interrupted.A Service will be considered unavailable if the Service experiences a complete or material loss of Service, subject to the exclusions set out below (a “Service Outage”). The measurement period for determining the Service Unavailability shall commence upon CAPCON NETWORKS’ receipt of notification from the Client of the Service Unavailability and shall conclude upon the date/time of Service restoration. Clients must always report any fault or quality issue with any Service to CAPCON NETWORKS’ Network Operation Center (“NOC”).
Proactively Monitored Services: Service for which customer has enabled ‘basic (ICMP)’ or ‘advanced (SNMP)’ proactive monitoring are considered unavailable if the service is deemed to be unreachable by CAPCON NETWORKS NOC. Subject to the exclusions set out below (a “Service Outage”). The measurement period for determining the Service Unavailability shall commence upon CAPCON NETWORKS’ identification of service or circuit being unavailable or unresponsive for a period of 5 minutes, or per the established protocol at the time, whichever is less. Service Unavailability and shall conclude upon the date/time of Service restoration. Clients must always report any fault or quality issue with any Service to CAPCON NETWORKS’ Network Operation Center (“NOC”).
4.4. Credits will only be provided for failure to meet the Availability levels set forth above. CAPCON NETWORKS will aggregate the total Unavailable Times per month on a per-circuit/-Service basis and credit the resulting amount to the Client for the affected Services. With respect to any Service Outages that entitle the Client to receive a credit, the amount of the credit will be calculated as follows based on the duration of Unavailable Time beyond the applicable threshold time:
DURATION CREDIT
00:00:01-02:00:00 5% of MRC
02:00:01-04:00:00 10% of MRC
04:00:01-08:00:00 20% of MRC
08:00:01-12:00:00 30% of MRC
12:00:01-24:00:00 40% of MRC
24:00:01+ 50% of MRC
5. OUTAGE REPORTING OBJECTIVE
CAPCON NETWORKS’ NOC will make reasonable efforts to inform t h e Client of any general systems outage that may have affected the Client’s Service within thirty (30) minutes of its first awareness of the above- mentioned outage. CAPCON NETWORKS will make reasonable attempts to notify and inform the Client by submitting such notification via the telephone, fax, e-mail and or SMS. To facilitate such notification, it is the Client’s responsibility to ensure that CAPCON NETWORKS NOC have any and all updated contact information for the Client, namely, all telephone and fax numbers and e- mail addresses for all Client notifications regarding disruption of Service.
6. MEAN TIME TO REPAIR (“MTTR”) OBJECTIVE
CAPCON NETWORKS will commit to the industry standard MTTR of four (4) hours or under for outages affecting its network. Any downtime against MTTR will be counted toward Service Unavailability, and Service credits will be applicable as per Service Availability Objectives.
7. SCHEDULED MAINTENANCE OBJECTIVE
7.1. It may occasionally be necessary for CAPCON NETWORKS to carry out essential maintenance or network Capcon Networks WAN Services Schedule & SLA Proprietary and Confidential page 4/6 upgrades. Scheduled Maintenance shall g e n e r a l l y occur no more than five (5) times in any given calendar month and is generally performed between 2:00 and 6:00 am local time in the region where the Service is located and/or performed. CAPCON NETWORKS will use commercially reasonable efforts to keep Sc he d ul ed Maintenance to a minimum and assure the availability of its Backbone.
7.2. Except in the event of an emergency or a Force Majeure Event, CAPCON NETWORKS and the Client will use commercially reasonable efforts to apply t he following procedures with respect to Scheduled Maintenance:
7.2.1. CAPCON NETWORKS will provide th e Client with at least ten (10) business days’ notice of any planned work that will affect the availability of Service, except in case of emergency maintenance work on the network.
7.2.2. The Client will confirm to CAPCON NETWORKS within two (2) business days that the Scheduled Maintenance proposals are acceptable. A lack of response from the Client shall be deemed as acceptance.
7.2.3. Where possible, CAPCON NETWORKS will provide t h e Client with Scheduled Maintenance proposals, and confirmation details should be exchanged by fax/e-mail/telephone as provided in the Agreement.
7.2.4. Where feasible and possible, CAPCON NETWORKS will make temporary alternative arrangements during Scheduled Maintenance to avoid an interruption in the Client’s Service.
7.2.5. CAPCON NETWORKS will give notice of Scheduled Maintenance to the named contacts of the Client defined in the Agreement.
7.2.6. The Client shall use commercially reasonable efforts to give CAPCON NETWORKS advance notice of any event of which the Client is aware at its end.
8. LATENCY OBJECTIVES
8.1. The Round-Trip Time objectives CAPCON NETWORKS commit to deliver on each route, on average, are indicated in following table:
8.2. These figures are measured by averaging sample tests made every thirty (30) minutes during a calendar month between two defined Backbone routers.
8.3. Should the round-trip packet delay time be exceeded for one week during a given month, CAPCON NETWORKS shall credit the Client two percent (2%) of the Service Fees for the affected month.
9. PACKET DELIVERY OBJECTIVE
9.1. CAPCON NETWORKS guarantees Packet Delivery monthly. CAPCON NETWORKSs regularly measured average Capcon Networks WAN Services Schedule & SLA Proprietary and Confidential page 5/6 Packet Delivery within its Backbone nodes shall exceed 99.9%.
9.2. Packet Delivery is the percentage of packets successfully sent and received between designated pairs of core routers across CAPCON NETWORKS’s network. Packet Delivery is computed as the average of the Packet Delivery samples over the course of a month.
9.3. Should this Packet Delivery level fall below the objective for one week during a given month, CAPCON NETWORKS shall credit the Client two percent (2%) of the monthly Service F e e s for the affected Service.
10. FRAME JITTER OBJECTIVE
10.1. CAPCON NETWORKS guarantees Frame Jitter monthly. CAPCON NETWORKS’s regularly measured average Frame Jitter within its Backbone nodes shall not exceed 2 milliseconds (ms).
10.2. Jitter is the time variation between frames arriving at an interface. This can be generated by different causes, such as network congestion or route changes. Jitter is computed as the 90th Percentile of the absolute Interframe Delay Variation samples over the course of a month.
10.3. Should the Jitter time be exceeded for one week during a given month, CAPCON NETWORKS shall credit the Client two percent (2%) of the monthly ServiceFees for the affected Service.
11. EXCLUSION FROM SERVICE OBJECTIVES
11.1. Unavailable Time shall exclude periods when Service outages arise from or are otherwise indirectly caused by:
11.1.1.Service outage periods due to any cause other than faults in the CAPCON NETWORKS network, including faults or negligence of the Client or problems associated with equipment connected on the Client's side of the CAPCON NETWORKS Service delivery point.
11.1.2. In cases where the Client’s premises equipment impacts or otherwise causes alterations to the quality of the Service or malfunctioning in the network, CAPCON NETWORKS will proceed to disconnect the link for the benefit of the other users of the network, and such disconnection will not be the basis for any Service credit under the SLA. CAPCON NETWORKS will notify the Client as s o o n as possible in such event in order to allow the Client to repair or address the problems.
11.1.3.Outage periods reported by the Client in which no fault is observed or confirmed by CAPCON NETWORKS.
11.1.4.Any fault period during which Service is suspended pursuant to the terms of the Agreement.
11.1.5. Downtime when CAPCON NETWORKS technical staff cannot have access to the Client’s facilities, premises, or equipment when requested by CAPCON NETWORKS for the purpose of investigating the problem and restoring the Service, including those cases where the Service includes the management by CAPCON NETWORKS of equipment on the Client’s site.
11.1.6. The Client requests that CAPCON NETWORKS upgrade the capacity of the Service and if this operation results in an outage. Such an upgrade is s u b j e c t to a new Order signed by the Parties, who will have agreed in advance on the operation date of such an upgrade.
11.2. No Service credit shall apply:
11.2.1. During Scheduled Maintenance affecting the Service as defined under Service Maintenance Objectives.
11.2.2. For any use made by the Client of a transmission capacity prior to the RFS Date.
11.2.3. Performance degradations and Service loss due to Denial Of Service attacks or other unlawful attacks generated inside the Client's network or executed against users inside the Client's network or the Client’s network infrastructure will be excluded from SLA calculation, as it is within the Client's responsibility to put in place the relevant protection mechanisms inside its network to protect itself and its Clients.
11.2.4. Nevertheless, CAPCON NETWORKS is available to support the Client by implementing appropriate measures on CAPCON NETWORKS’s network, such as limiting ICMP Bandwidth, rate limiting over the Client’s ports, implementing filters, or black- holing routes.
11.2.5. In case of Service disruption due to a Force Majeure event as defined in the CAPCON NETWORKS’s Terms and Conditions applicable to the SOF.
12. CHRONIC SERVICE OUTAGE
A Chronic Service Outage will be deemed to have occurred only if the Customer experiences four (4) or more related Service Outages resulting in loss of service for at least three (3) hour’s each within any calendar month period and only when the Service Outage is not the result of (i) the fault or negligence of Customer; (ii) the failure of interconnecting facilities or other equipment not part of CAPCON NETWORKS Service or facilities or not within CAPCON NETWORKS’ Capcon Networks WAN Services Schedule & SLA Proprietary and Confidential page 6/6 or its supplier’s reasonable control; (iii) Scheduled Maintenance. In the event that there is a Chronic Service Outage, Customer may upon written notice to CAPCON NETWORKS, immediately terminate the affected on-net Services only if (i) Customer notifies in writing CAPCON NETWORKS through CAPCON NETWORKS NOC trouble ticket system subject to the terms of section 4.3; and (ii) Customer provides written notice with respect to such termination to CAPCON NETWORKS within thirty (30) days following the eligible service outage entitling Customer to terminate in accordance with this Section. In case of such termination, Customer will be responsible for all amounts due up to the date of termination. For off-net services, CAPCON NETWORKS will have thirty (30) days following receipt of Customer’s written notification of the Chronic Service Outage through the CAPCON NETWORKS NOC trouble ticket system to evaluate and prescribe resolution, including a timeline to complete the prescribed repairs (“Cure Period”). If CAPCON NETWORKS is unable to resolve the Chronic Service Outage within the Cure Period, Customer shall have the right to terminate the affected Service if Customer provides written notice with respect to such termination to CAPCON NETWORKS within thirty (30) days following the Cure Period. In case of such termination, Customer will be responsible for all amounts due up to the date of termination. CAPCON NETWORKS shall make commercially reasonable efforts to obtain and pass-through any cancelation rights from its underlying vendor for any off-net Chronic Service Outage.
13. GENERAL TERMS APPLYING TO CREDITS
13.1. As a condition of entitlement to a credit, the Client must report any Service Outage during the affected period, including by way of opening a trouble ticket, and cooperate in resolving any such problems.
13.2. The Client must submit credit requests in writing within thirty (30) calendar days following the event in which entitlement to a credit arose .
13.3. The provision of credits under this Service Order is the Client’s sole and exclusive remedy and CAPCON NETWORKS’ sole obligation in connection with a failure to meet the stated Service Level Objective.
14. THIRD-PARTY SERVICES
CAPCON NETWORKS will always grant the Client the same credit rights that a Third-Party Provider grants to CAPCON NETWORKS. Upon receipt of a Third-Party Provider’s Service credits, CAPCON NETWORKS will credit the Client in a proactive way.
15. ACCEPTABLE USE POLICY (“AUP”)
15.1. The Client shall comply with CAPCON NETWORKS’s acceptable use policy (“AUP”) as applicable during the term of this Agreement.
15.2. CAPCON NETWORKS reserves the right to modify and amend the AUP according to its network requirements.
16. MISCELLANEOUS
16.1. The Client acknowledges and agrees that the objectives set forth in this Schedule do not constitute guarantees, commitments, or warranties of any kind whatsoever under applicable law, and the Client shall not receive or be entitled to any further remedy or compensation for any Service outage, delay, or noncompliance beyond that expressly set forth in this Schedule, and any other liability, loss, damage, or cost incurred by th e Client as a result of any Service outage is hereby expressly disclaimed and waived by the Client as an express condition for CAPCON NETWORKS’s provision of the Service.
16.2. Contract penalties shall be paid to the Client via Credit Note in a proactive way for Service Availability objectives.
16.3. The Client shall not receive more than one Service credit request with respect to any one given incident, e.g., CAPCON NETWORKS will not allow separate credits for the Backbone not being accessible AND the maximum round-trip time being exceeded for that given month.
16.4. Service credits to t h e Client shall not exceed 100% of the contracted monthly charges incurred by t h e Client for the specific Service or installation in question. For multipoint or bundled Services, the Service credits to the Client shall not exceed the Allocated MRC for the affected Service.
16.5. Should CAPCON NETWORKS require additional information from th e Client, the 10-day notification period for t h e Client shall begin upon receipt of all information required by CAPCON NETWORKS.
16.6. When the Service credit request is submitted, the Client shall nevertheless pay its entire Service bill and shall not withhold or deduct any Service credits it would anticipate receiving from CAPCON NETWORKS.
16.7. In case of an early termination of the Agreement, the Service credits will be calculated on a pro-rata basis, and no further credits will be payable.
16.8. CAPCON NETWORKS shall have no liability to the Client’s end user and/or carrier customers arising from or relating to this Schedule.
17. POLICY CHANGES
Capcon Networks WAN Services Schedule & SLA Proprietary and Confidential page 7/6 17. POLICY CHANGES CAPCON NETWORKS, at its sole discretion or upon request of a local or national authority, shall be entitled to change, amend or revise this policy at any time and for any reason by providing written notice thereof to the Client in accordance with the notice provisions in the Agreement.
