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Service Level Agreement

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Effective Date: January 12, 2011

This Service Level Agreement (“SLA”) (posted on www.nephoscale.com) represents part of an agreement (this/the “Agreement”) between Silicon Valley Web Hosting, Inc., a California subchapter S corporation d/b/a NephoScale  (” us“, “we“, or “NephoScale“) and the Customer who orders NephoScale services (“you” or “Customer“) and, if applicable, the company or other legal entity you represent (collectively, “You”).  When we use the term “Agreement” in any of the Order Form (“Order”), Terms of Service (“TOS”), Acceptable Use Policy (“AUP”), Privacy Policy, or Service Level Agreement (“SLA”) we are referring collectively to all of them.

This NephoScale Service Level Agreement (“SLA”) is a policy governing the use of the NephoScale Cloud Servers, NephoScale On-Demand Dedicated Servers, and Object Based Cloud Storage (collectively known as “NephoScale Cloud Services”) under the terms of the NephoScale TOS between NephoScale and its Customers. This SLA applies separately to each account using NephoScale Cloud Services. Unless otherwise provided herein, this SLA is subject to the terms of the NephoScale Agreement. We reserve the right to change the terms of this SLA in accordance with the NephoScale Agreement.

1.      SERVICE OBLIGATION

NephoScale will use all reasonable efforts to make NephoScale Cloud Services available with a Monthly Uptime (defined below) of at least 99.95% during each calendar month. In the event NephoScale does not meet the Monthly Uptime commitment, you will be qualified to receive a Credit as described below. For NephoScale On-Demand Dedicated Servers we guarantee 2 hour hardware repair or replacement. In the event that it takes NephoScale more than two hours to replace faulty hardware, recorded from the time the source of the problem is identified by NephoScale support staff, NephoScale will credit the customer 25% of the monthly fee for the affected server. In the event that during the same 30 day period hardware repair or replacement for an On-Demand Dedicated Server exceeds 2 hours, from the time the source of the problem is identified, and the Monthly Uptime drops below 99.95%,  the total credit extended to you will not exceed 25% of the monthly fee for the affected server. The credit amount will not exceed 25% for any 30 day period. This guarantee includes the time required to rebuild a RAID array and reload the operating system. This guarantee does not include the time to restore data or load 3rd party applications beyond the operating system itself. All Data Restores are guaranteed to begin within 2 hours of problem identification, and if not the 25% credit will apply.

2.      DEFINITIONS

  • “Monthly Uptime” is calculated by subtracting from 100% the percentage of 5 minute periods during the previous 30 days from the date a “Credit Claim” is  made, in which any NephoScale Cloud Services were “Inaccessible”. Any downtime occurring prior to a successful Credit Claim cannot be used for future claims. Monthly Uptime measurements exclude downtime resulting directly or indirectly from any NephoScale SLA Exclusion (defined below).
  • “Inaccessible” means that a service has no external connectivity during a five minute period and you are unable to launch a replacement service.
  • The “Qualified Credit Period” is the 30 days prior to the date a Credit Claim is submitted made by the customer.
  • A “Credit” is credit based in US Dollars. The Credit, calculated as set forth below, that we may credit back to an eligible NephoScale account.
  • “Credit Claim” means the submission of a credit request made by sending an email message to billing@nephoscale.com.

3.      CREDITS

If the Monthly Uptime for a customer drops below 99.95% for the 30 days prior to the date a Credit Claim is made, that customer is eligible to receive a Credit equal to 10% of their monthly bill for the affected service (excluding one-time payments made for Membership Fees) for the Qualified Credit Period; and if it drops below 99.9% for the 30 days prior to the date a Credit Claim is made, that customer is eligible to receive a Service Credit equal to 25% of their monthly bill for the affected service (excluding one-time payments made for Membership Fees) for the Qualified Credit Period. A customer can file a claim any time their Monthly Uptime Percentage over a calendar month drops below 99.95%.

We will apply any Credits only as account credits toward the payment of future services purchased from NephoScale, and will be applied as an offset against payments otherwise due from you. Credits will not be issued as a refund or other payment from NephoScale. Credits may not be transferred or applied to any other account. Unless otherwise provided in the NephoScale Agreement, your sole and exclusive remedy for any inaccessibility or lack of delivery of  NephoScale Cloud Services or other failure by us to provide NephoScale Cloud Services is the receipt of a Credit (if eligible) in accordance with the terms of this SLA or termination of your use of NephoScale Cloud Services.

4.      CREDIT CLAIMS

To receive a Service Credit, you must submit a request by sending an email message to billing@nephoscale.com. To be qualified, the credit claim must:

  • Include your account number in the subject of the email message (the account number can be found in the Summary section of your NephoScale Portal)
  • Include, in the body of the email, the dates and times of each incident of Inaccessibility that you claim to have experienced including service ids of the services that were running and affected during the time of each incident.
  • Include your request logs that document the errors and confirm your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with dashes)
  • Credit Claim must be received by us within sixty (30) business days of the last reported incident in the SLA claim.
  • If the Monthly Uptime of such request is confirmed by us and is less than 99.95% for the 30 days prior to the date the credit claim is made, then we will issue the Credit to you within one billing cycle following the month in which the request occurred.
  • Your failure to provide the request and other information as required within the sixty (30) business days of the last reported incident in the SLA claim above will disqualify you from receiving a Credit.

5.      EXCLUSIONS

The Service Obligation does not apply to any Inaccessibility of NephoScale Cloud Services, or any other NephoScale Cloud Services performance issue that:

  • Result from scheduled maintenance downtime (Customer will be notified at least 48 hours in advance of all maintenance windows and  if possible  maintenance window times will be coordinated with customer to avoid peak traffic periods)
  • Are caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the control of NephoScale
  • Result from a suspension described in NephoScale TOS
  • Arise from our suspension and termination of your right to use NephoScale Cloud Services in accordance with the NephoScale Agreement
  • Result from any actions or inactions of you or any third party
  • Result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control)
  • Result from failures of individual services not attributable to the Inaccessibility
  • Interruptions or failure of individual service caused by client, their employees, their consultants, client’s customers, etc. to their service. These include inaccurate configuration, third-party software, client abuse or over-utilization of resources, hacked servers, attacks, exploits.

If availability is impacted by factors other than those explicitly listed in this agreement, we may issue a Credit considering such factors in our sole discretion.

6.      TERMS OF SERVICE

Terms defined in the Terms of Service and the Agreement will have the same meaning when used in this SLA. In the event of any conflict between this SLA and the Terms of Service, the Terms of Service will govern.