Service Level Agreement
Network
Service Level Agreement
(Ver. 031808 stnd.)
The following terms and conditions of this Service Level Agreement (as amended from time to time, this "SLA") apply only to Products and Services and govern (A) the use and availability of Creative Infusions Network to those persons that have purchased Products and Services directly from Creative Infusions (each, a “Customer”), and (B) the right, under certain circumstances specified below, of a Customer to receive services credits in respect of the failure of Creative Infusions Network and/or the failure of Creative Infusions to provide the Products and Services purchased by Customer from Creative Infusions in accordance with (i) the Terms of Service, (ii) Creative Infusions’s AUP and (iii) this SLA, each of which is incorporated herein by reference and made a part hereof (collectively, the "Agreement"). Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the Terms of Service or AUP, as applicable. Customer’s use of Creative Infusions’s website, Creative Infusions Network, and the Products and Services is also subject to Customer’s acceptance and compliance with this SLA, the Terms of Service, the AUP and the Order Form. CREATIVE INFUSIONS HEREBY RESERVES THE RIGHT TO AMEND, ALTER, MODIFY, REPLACE OR SUSPEND, FROM TIME TO TIME IN ITS SOLE DISCRETION, ALL OR ANY PORTION OF ITS AUP OR PRIVACY POLICY. CURRENT COPIES OF CREATIVE INFUSIONS’S TERMS OF SERVICE, AUP AND PRIVACY POLICY MAY BE REVIEWED OR PRINTED BY CUSTOMER AT THE LEGAL SECTION OF CREATIVE INFUSIONS’S WEBSITE. CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THE SLA AND AUP. By submitting the online order form, Customer hereby agrees to the following:
1.
Definitions. When used in this SLA, the following capitalized terms shall have the definitions set forth below:
a.
“AUP” means Creative Infusions’s standard acceptable usage policy, as in effect and listed on Creative Infusions’s website from time to time and subject to all changes, modifications and replacements as Creative Infusions may effect in accordance with the Terms of Service and AUP.
b.
“Order Form” means Creative Infusions’s standard service exhibit, service addendum or order form, specifying the products and services purchase by Customer, as in effect from time to time.
c.
“Products and Services” means those products and services offered by Creative Infusions to its general customer base, in each case as purchased by a Customer and set forth on an Order Form, but expressly excludes all products and services offered by Creative Infusions’s managed hosting division and expressly marketed as managed hosting services.
d.
“Privacy Policy” means Creative Infusions’s standard privacy policy, as in effect and listed on Creative Infusions’s website from time to time and subject to all changes, modifications and replacements as Creative Infusions may effect in accordance with the Terms of Service and AUP.
e.
“Scheduled Maintenance” means all maintenance services for which Creative Infusions gives Customer at least five (5) days prior notice of such maintenance services via Creative Infusions’s outage mailing list maintained on Creative Infusions’s customer portal.
f.
“Service Credit” means a credit, calculated in accordance with this SLA, issued by Creative Infusions to the Customer in respect of products and services contracted for, but not delivered by Creative Infusions in accordance with the Agreement due to a Qualified Network Downtime Event.
g.
“Terms of Service” means either (i) Creative Infusions’s standard terms of service as in effect and listed on Creative Infusions’s website as of the date of Customer’s purchase of Products and Services or (ii) solely to the extent Creative Infusions and Customer have separately negotiated written terms of service different from those referred to in clause (i), Creative Infusions’s standard terms of service which incorporate such other written terms of service, duly executed and delivered by each party; in each case, as amended from time to time.
h.
“Creative Infusions” means Creative Infusions, a Delaware corporation, together with its successors and assigns.
i.
“Creative Infusions Network” means the portion internal computer network owned or operated on behalf of Creative Infusions that extends from the outbound port on a Customer’s cabinet switch to the outbound port on the border router and includes all redundant internet connectivity, bandwidth, routers, cabling and switches.
2.
100% Creative Infusions Network Availability Assurance: Creative Infusions assures Customer 100% uptime availability of Creative Infusions Network covered by this SLA. Subject to Section 3 below, in the event that Creative Infusions fails to provide Customer with the Products and Services purchased by Customer in accordance with the Agreement and such failure results from the complete unavailability of Creative Infusions Network or the failure of Creative Infusions Network to pass Customer’s TCP/IP traffic with less than three percent (3%) packet loss and less than 30ms latency across Creative Infusions Network (other than as specified below, each such event, a “Qualified Network Downtime Event”), Creative Infusions will issue Customer a Service Credit calculated as follows.
a.
A Qualified Network Downtime Event shall start upon Customer’s submission of a written trouble ticket specifying that a Qualified Network Downtime Event has occurred and the details associated with such Qualified Network Downtime Event. All such trouble tickets must be submitted by Customer through Creative Infusions’s customer portal or through Creative Infusions’s technical support department. Upon the passage of five (5) continuous minutes of a Qualified Network Downtime Event, the Service Credit shall equal five percent (5%) of the monthly fees payable by Customer in respect of such Products and Services for the month in which such Qualified Network Downtime Event occurred and thereafter during the pendency of such unavailability, the Service Credit shall increase by an additional five percent (5%) for each continuous thirty (30) minutes of a Qualified Network Downtime Event up to a maximum of one hundred percent (100%) of monthly fees payable by Customer in respect of such Products and Services for the month in which such Qualified Network Downtime Event occurred.
b.
All Service Credits are calculated by Creative Infusions on a “per-event-basis” each calendar month and in no event will downtime or unavailability be cumulated during any monthly period for purposes of determining a Customer’s right to any Service Credit. The following events do not constitute a Qualified Network Downtime Event or qualify for any Service Credit under this SLA: (i) Scheduled Maintenance or (ii) Customer generated outages created by failed equipment, customer mis-configurations, exploited servers, or traffic in excess of the maximum allowed by contract. Service Credits are based directly on all equipment and/or services affected by a Qualified Network Downtime Event. Products, services or hardware not related to a Qualified Network Downtime Event do not qualify for a Service Credit. Redundant Internet connectivity is measured as traffic routing into and out of a Customer’s equipment through Creative Infusions Network out to internet backbone carriers and does not include third party carrier latency or peering issues not utilized by Creative Infusions.
3.
Service Credits: Service Credits do not constitute a refund in respect of any product or service and may not be carried forward to future months, paid for or exchanged for cash or other monetary consideration or value. Service Credits are not available (i) in respect of any outage or event associated with Scheduled Maintenance or arising from any denial of service attack, virus, hacking attempts or any other circumstances or events that are not within the control of Creative Infusions, including any Force Majeure Event, (ii) to any Customer that is more than thirty (30) days past due on any amount owing to Creative Infusions or any Customer that has breached the Agreement or (iii) in respect of any products or services contracted for with Creative Infusions that expressly exclude technical support or such Service Credits. Valid approved Service Credits will appear as a credit for products and services and be applied against the amounts owing in respect of such products and services on the next billable invoice following the month in which occurred the Qualified Network Downtime Event giving rise to such Service Credit. In order for a Customer to qualify for a Service Credit, the Customer must (A) have purchased and paid for Products and Services, (B) utilize redundant input network drops running Hot Swap Router Protocol (HSRP) in its equipment and (C) submit a request for a Service Credit, as applicable, in writing via Creative Infusions’s customer portal to accounting@creativeinfusions.net, within three (3) days from the date of event giving rise the requested Service Credit and in accordance with the terms of this SLA. Failure to request a Service Credit in accordance with the terms of this SLA will result in an automatic waiver of any rights to such Service Credit under this SLA in respect of the event giving rise to such Service Credit. Notwithstanding anything in the Agreement to the contrary, the maximum total Service Credit for any calendar month, including all refunds, guarantees, warranties and other service level agreements Customer may have with Creative Infusions, shall not exceed one hundred percent (100%) of Customer’s monthly recurring fee for Products and Services during such month.
4.
Scheduled Maintenance: Customer hereby acknowledges that Creative Infusions may, from time to time, perform maintenance service on Creative Infusions Network, with or without notice to Customer, which may result in the unavailability of Creative Infusions Network. Downtime or unavailability resulting from Scheduled Maintenance shall not constitute a Qualified Network Downtime Event or qualify for any Service Credit. Customer must subscribe to Creative Infusions’s outage mailing list and provide accurate and timely information in Creative Infusions’s customer portal in order for Creative Infusions to notify Customer of all Scheduled Maintenance. Customer’s failure to subscribe to Creative Infusions’s outage mailing list or to provide accurate and timely information on Creative Infusions’s customer portal may result in the forfeiture of any Service Credit based on downtime or unavailability arising from Scheduled Maintenance for which Customer did not receive timely notice. Emergency maintenance and maintenance for which Creative Infusions has not given Customer notice in accordance with this SLA shall not be deemed Scheduled Maintenance for purposes of this SLA.
5.
DISCLAIMER: Customer hereby acknowledges that Creative Infusions’s ability to provide Products and Services and technical support to Customer and to manage any server owned or controlled by or leased to Customer is contingent upon Creative Infusions’s ability to connect Creative Infusions Network to such server and monitor such server. In the event that Customer substantially impairs Creative Infusions’s ability to connect Creative Infusions Network to any server owned or controlled by or leased to Customer, including, but not limited to, through the installation of software, including, but not limited to, firewall software or load balancing software, or through the configuration of such server, then Creative Infusions shall have no obligation to provide Products and Services or technical support services or any of the services provided for in this SLA for such server and Customer shall not be entitled to any Service Credit under this Agreement with respect to such server. If Customer requests technical support services or management services for a server for which Customer has impaired the ability of Creative Infusions to connect Creative Infusions Network to such server, Creative Infusions shall provide such technical support services or management services as professional services on a time and material basis and Customer shall be billed at Creative Infusions’s then-current professional services rate. Creative Infusions shall not be liable for the failure or delay in performing its obligations hereunder or under the Agreement if such failure or delay is due to external circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Creative Infusions’s products and services (each, a “Force Majeure Event”). Creative Infusions agrees to exercise reasonable efforts to mitigate the damage arising from Force Majeure Event; however, under no circumstances will Creative Infusions or its affiliates be held liable for any cost, expense, liability, claim or damage due to such interruptions. In no event shall Creative Infusions or its affiliates be liable to Customer or any other person for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, cost of cover, loss of income or cost of replacement services. Customer acknowledges and agrees that the receipt of a Service Credit as provided for in this SLA constitutes Customer's sole and exclusive remedy, and Creative Infusions’s sole and exclusive liability, for any failure of Creative Infusions Network or failure by Creative Infusions to provide Customer with the products and services purchased by Customer in accordance with the Agreement which results from a Qualified Downtime Event. CREATIVE INFUSIONS RESERVES THE RIGHT TO AMEND, MODIFY OR TERMINATE THIS SLA, THE AUP, THE PRIVACY POLICY AND THE TERMS OF SERVICE FROM TIME TO TIME, AND A CUSTOMER’S USE OF CREATIVE INFUSIONS’S PRODUCTS AND SERVICES AND CREATIVE INFUSIONS NETWORK AFTER ANY SUCH AMENDMENT, MODIFICATION OR TERMINATION OF THIS SLA, THE AUP, THE PRIVACY POLICY OR THE TERMS OF SERVICE IS POSTED ON THE LEGAL DEPARTMENT PAGE OF CREATIVE INFUSIONS’S WEBSITE (HTTP://WWW.CREATIVEINFUSIONS.NET/) WILL CONSTITUTE THE CUSTOMER’S ACCEPTANCE OF ANY SUCH AMENDMENTS, MODIFICATIONS OR TERMINATION.
(Last Modified March 18, 2008)
