Service Level Agreement (SLA)

Fluidservers Service Level Agreement

TERMS AND CONDITIONS

Fluidservers’s Availability Guarantee is to have the Fluidservers Network, which includes everything from the connection from customer’s servers to the connection to the Internet Backbone, Connectivity provided to customers available 99.9% of the time and, as set forth belowFluidservers will credit Customer’s account if Fluidservers fails to meet this Availability Guarantee during any given calendar month. At Customer’s requestFluidservers will calculate Customer’s “Network Unavailability” in a calendar month. “Network Unavailability” consists of the number of minutes that the Fluidservers Network was not available to Customer, but will not include unavailability which Customer fails to report to Fluidservers within five days, or any unavailability resulting from
(a) Fluidservers Network maintenance provided it occurs at regularly scheduled times of which Customer has reasonable advance notice or at times otherwise agreed to in advance by Customer

(b) any Customer circuits or equipment

(c) Customer’s applications or equipment,

(d) acts or omissions of Customer, or any use or user of the service authorized by Customer

or

(e) reasons of Force Majeure (as defined in the applicable service agreement). For each hour in which any Network Unavailability occurs, Customer’s account shall be credited for the pro-rated charges for one day of the Fluidservers Monthly Fee for the service with respect to which this Guarantee has not been met.

     In the event that Customer experiences packet loss in excess of one percent (1%) (“Excess Packet Loss”) or transmission latency in excess of 120 milliseconds round trip time between any two points within Fluidservers’s Network (collectively, “Excess Latency”, and with Excess Packet Loss “Excess Packet Loss/Latency”)Fluidservers will take all actions necessary to determine as promptly as reasonably practicable the source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss/Latency; Notification of Customer. As soon as practicable, but within two (2) hours of discovering the existence of Excess Packet Loss/Latency, Fluidservers will determine whether the source of the Excess Packet Loss/Latency is limited to the Customer equipment and the Fluidservers equipment connecting the Customer equipment to Fluidservers’s LAN (“Customer Specific Packet Loss/Latency”). If the Excess Packet Loss/Latency is not a Customer Specific Packet Loss/Latency, Fluidservers will determine the source of the Excess Packet Loss/Latency as soon as practicable, but within two (2) hours. In any event, Fluidservers will notify Customer of the source of the Excess Packet Loss/Latency within sixty (60) minutes after identifying the source.

(B) Remedy of Excess Packet Loss/Latency. If the Excess Packet Loss/Latency remedy is within the sole control of Fluidservers, Fluidservers will remedy the Excess Packet Loss/Latency as soon as practicable, but within two (2) hours of determining the source of the Excess Packet Loss/Latency. If the Excess Packet Loss/Latency is caused from outside of the Fluidservers LAN or WAN, Fluidservers will notify Customer and will use commercially reasonable efforts to promptly notify the party(ies) responsible for the source and cooperate with it(them) to resolve the problem as soon as possible.

(C) Failure to Determine Source and/or Resolve Problem. In the event that Fluidservers is unable to determine the source of and remedy the Excess Packet Loss/Latency within the time periods described above (where Fluidservers was solely in control of the source), Fluidservers will credit Customer’s account the pro-rata connectivity charges for one (1) day of service for every twelve (12)hour period after the time periods described above that it takes Fluidservers to resolve the problem with the maximum credit for any given month not to exceed one (1) month of service.

Fluidservers’s Power Availability Guarantee is to have the Fluidservers AC power provided to Customer’s collocation rack available 99.9% of the time and, as set forth below, Fluidservers will credit Customer’s account if Fluidservers fails to meet this Power Availability Guarantee during any given calendar month. “Power Unavailability” consists of the number of minutes that adequate power to enable Customer’s equipment to function at its peak load levels was not available to Customer’s collocation rack, but will not include collocation rack power unavailability which Customer fails to report to Fluidservers within five days, or any unavailability resulting from(a) any Customer circuits or equipment,(b) Customer’s application or equipment,(c) acts or omissions of Customer, or any use or user of the service authorized by Customer

or

(d) reasons of Force Majeure (as defined in the applicable service agreement). For each day during which any Power Unavailability occurs , Customer’s account shall be credited the charges for one day of the Fluidservers Monthly Fee for the service with respect to which this Guarantee has not been met.

Facility Security and Access. Fluidservers shall limit access to the facilty in which the rack space is located to its authorized employees and representatives and those of its customers, and shall limit access to Customers’ rack space to Customer and Fluidservers’s authorized employees and representatives.

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