SERVICE LEVEL AGREEMENT FOR THE PROVISION OF ETHERNET DATA SERVICES

Transcription

1 Ethernet Ts and Cs chicane SERVICE LEVEL AGREEMENT FOR THE PROVISION OF ETHERNET DATA SERVICES Chicane Internet Ltd, Pegasus 1, Orion Business Park, Great Blakenham, Ipswich. IP6 0LW

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3 AGREEMENT dated as per contract BETWEEN: (1) CHICANE INTERNET LTD (Registered No ) whose registered office is at Pegasus 1, Orion Business Park, Great Blakenham, Ipswich, IP6 0LW; and (2) XXXXXXX (Registered No. XXXXXX) whose registered office is at XXXXXXX and all its subsidiaries and associated companies (the Customer, as per contract), each individually a Party and jointly the Parties NOW THEREFORE THE PARTIES AGREE AS FOLLOWS: 1) Interpretation a) All defined terms used in this Agreement shall have the meanings ascribed to them in Agreement unless the context otherwise requires. b) Unless otherwise specified, words importing the singular include the plural, words importing any gender include every gender, words importing persons include bodies corporate and unincorporate and references to the whole include the part; and in each case vice versa. c) References to clauses are to clauses of this Agreement in which the reference appears unless otherwise specified. d) Headings are inserted for convenience only and shall not be used in any way to interpret the provisions of this Agreement. e) The expressions the Customer and CHICANE INTERNET shall include their respective successors and permitted assigns and their respective employees and agents. f) Any reference to any Act of Parliament shall be deemed to include any amendment, replacement or re-enactment thereof from time to time in force and to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made thereunder and any condition attaching thereto. g) Any undertaking by the Customer to do or not to do any act or thing shall be deemed to include an undertaking to procure or not to permit or suffer the doing of that act or thing. 2) Definitions a) RIPE means the European Internet Registry. b) "Service Equipment means the equipment, cabling and systems provided by CHICANE INTERNET, or its subcontractors, which is to be installed at the Customer s or the Customer s End-User s premises in order to make available the Service(s) to the Customer or the End- User and as detailed in Appendix l. For the avoidance of doubt, Service Equipment shall not include any equipment which is the subject of a separate supply or service agreement between CHICANE INTERNET and the Customer. c) "Circuit Schedule means the network as illustrated in Appendix ll describing the Service which CHICANE INTERNET provides to the Customer. d) Password means the alpha numeric characters used exclusively by the Customer at his own risk for the purpose of securing and maintaining exclusive access to the Internet Service(s) provided by CHICANE INTERNET. e) Username means such sequence of alpha numeric characters as are used from time to time by the Customer to identify a user or users of other computers to which CHICANE INTERNET is from time to time connecting or otherwise forwarding data to and from the Customer. f) Internet Address means such sequence of alpha numeric or numeric only characters as are used from time to time by the Customer to identify their own user(s) or computer(s) to other computers to which CHICANE INTERNET is from time to time connecting or otherwise forwarding data to and from the Customer. g) IP means Internet Protocol. h) Internet" means the global data network comprising interconnected networks using TCP/IP (Transmission Control Protocol/Internet Protocol). i) Internet Service means the access to the Internet as provided by CHICANE INTERNET. j) Force Majeure means any cause beyond a Party s reasonable control including without limitation any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, the act or

4 omission of government, highways authorities, Public Communications Providers or other competent authority, war, military operations, or riot, difficulty, delay or failure in manufacture, production or supply by third parties of any Services Equipment or any part thereof (to the extent only that such difficulty, delay or failure was caused by an event of Force Majeure affecting that third party), or failure to obtain wayleaves having used reasonable endeavors to do so. k) Service means the provisions of the service as described in the Circuit Schedule. l) Service Levels means the Target Repair Times and the target levels of availability to be provided by CHICANE INTERNET to the Customer as set out below. m) Termination Charge means the charge(s) which shall be payable by the Customer to CHICANE INTERNET on termination of this Agreement or part thereof as set out below. n) Circuit means a leased line, carrier private circuit, national Ethernet circuit or Ethernet circuit as the context requires. For the avoidance of doubt, it does not include any DSL based circuits. o) LIBOR means the British Bankers' Association London Interbank Offered Rate fixed for pounds sterling (GBP). p) Service Credits means reductions in certain charges or compensation payments in respect of CHICANE INTERNET failing to meet specified Service Levels, calculated in the manner set out below. q) Working Day means Monday to Friday 9.00am to 5.00pm excluding Bank and Public holidays. r) Fault means a Service affecting fault. s) Scheduled Service means work required to be carried out in respect of the Circuits or the Services Equipment which will prevent a Service or Services from being available, notified in advance to the Customer by CHICANE INTERNET in accordance with the terms below. t) Commencement Date means the date on which CHICANE INTERNET made the Service or will make the Service available for use to the Customer. u) Annual Fee means the amount payable by the Customer for the Service as set out in Appendix III or as quoted by CHICANE INTERNET and agreed by the customer. v) End-User means any person authorized by the Customer to use the Services. 3) Term This Agreement shall expire no less than three year (36 months) from the Commencement Date. Where there are multiple Services being provided under one Order, it shall expire no less than three years from when the last Service was commenced under that Order. Thereafter, this Agreement will automatically renew for successive twelve month terms unless either party notifies the other party in writing of its intention not to renew under the provisions of Clause 12 below. Such notice may only be given to the other party no less than thirty (30) days prior to the date of the next renewal. 4) Payment of Services a) CHICANE INTERNET will issue invoices in advance for VAT purposes and payment is made by means of direct debit paid monthly in advance unless any other payment method has been agreed in writing between CHICANE INTERNET and the Customer. All Services and charges are deemed contracted for a minimum 36 months from the Commencement Date, irrespective of payment period. Payments are not refundable. b) 100% of the installation fee will be payable by the Customer on the completion of the signing of this Agreement by CHICANE INTERNET or as agreed in Appendix III. 100% of the installation fee (less 75 admin fee) is fully refundable to the Customer should further installation charges, over and above those in the Order, be chargeable following an initial site survey (should the customer wish to cancel). Should there be no further installation charges following site survey, the initial installation fee is non-refundable should the Customer wish to cancel the Order. The rental charges for each Service shall be payable when that Service is commenced. c) Should any invoices remain unpaid for a period of more than 30 days from the day of issue, CHICANE INTERNET reserves the right to charge interest at a rate of 2% above LIBOR. Furthermore, should any invoices remain unpaid for a period of more than 45 days, CHICANE INTERNET reserves the right to suspend the Service until payment has been received. The

5 suspension of this Service will not trigger the termination of this contract or the activation of Service Credits. d) CHICANE INTERNET may at any time after the expiry of the Term, but no more than once a year, vary the Annual Fee payable by the Customer upon giving the Customer at least thirty (30) days prior written notice provided that such variation does not exceed the greater of: i) ten per cent (10%) of the Annual Fee payable by the Customer in the preceding Year; or ii) an amount equivalent to any percentage increase in the Retail Prices Index last published by the Office for National Statistics before either the date when the immediately preceding increase came into effect pursuant to Clause 4 d) or this Clause 4 e) or the Commencement Date (whichever is the later) and the Retail Prices Index last published before the current date of notice of variation plus two percent (2%). 5) Way leave To Use Land Or Accommodation 5.1 In order for CHICANE INTERNET to perform its obligations under this Agreement, upon CHICANE INTERNET or its suppliers giving to the Customer reasonable notice and subject always to the Customer s right to supervise any access, the Customer grants to the CHICANE INTERNET and its suppliers (including its employees and authorised representatives) the right from time to time: to enter those parts of the premises or land of the Customer as necessary to the extent that they are used for the purposes of the provision of the Services; to perform installation and maintenance work at or on the said premises or land from time to time in accordance with the agreed access provisions and the Customer s prior agreement to a method statement detailing the nature of the works; to bring upon, install and keep installed at the said premises or land such equipment as is reasonably necessary for the provision of the Services and the maintaining of the Services Equipment. 5.2 In order for CHICANE INTERNET and its suppliers to perform its obligations under this Agreement, upon CHICANE INTERNET or its suppliers giving to the Customer reasonable notice and subject always to the Customer s right to supervise any access, the Customer shall at its own expense procure for the Supplier (including its employees and authorised representatives) the right from time to time: to enter those parts of the premises or land of any of the Customer s landlords or any User as necessary to the extent that they are used for the purposes of the provision of the Services; to perform installation and maintenance work at or on the said premises or land from time to time in accordance with the agreed access provisions and the Customer s prior agreement to a method statement detailing the nature of the works; to bring upon, install and keep installed at the said premises or land such equipment as is reasonably necessary for the provision of the Services and the maintaining of the Services Equipment. 5.3 The Customer at its own expense shall procure or provide whatever further consents and way leaves may be required to enable CHICANE INTERNET to provide Services under this Agreement. 5.4 Each Party shall at all times comply and procure that its employees and authorised representatives comply with all reasonable instructions of the other Party or any third party pursuant to any consents and way leaves obtained in accordance with this Clause The provisions of this Clause 5 shall apply for the duration of the Term and for other periods thereafter as may be required by CHICANE INTERNET to exercise its rights to disconnect and remove from the premises any Services Equipment. 6) Improper Use a) The Customer shall comply with the IP address allocation rules set out by RIPE, and to complete and submit form Ripe-141 (or any form which might supersede that

6 form) where necessary if requested. completion of this form. CHICANE INTERNET will assist with the b) The Customer agrees to use its reasonable endeavours to ensure that it, its agents and End-Users will not access the Service for sending or receiving illegal material, sending multiple (SPAM) mail (other than for marketing purposes in the normal course of its business), using open mail relay, attempting to access other services (hacking) and safeguard against the deployment of viruses, Trojans and worms. The Customer also agrees to use its reasonable endeavours to secure its network from external sources. c) The Customer shall indemnify CHICANE INTERNET for all costs, claims, damages or proceedings made or threatened to be made by reason of the Customer's or an End- User s use or misuse of the Services or Services Equipment or due to the Customer failing to make proper provision to secure its network from external sources. 7) Service Level Targets and Credits CHICANE INTERNET shall use reasonable endeavors to provide the Services throughout the term of the Agreement in a manner which meets or exceeds the Service Level set out in this section. The Service Credits set below are subject to a maximum, in aggregate in any calendar month, of 100% of the monthly rental for the Service in question. CHICANE INTERNET aims to provide a Service Level target of at least 99.99% in each 12 month period following the Commencement Date. For the purpose of calculating availability, Unavailable Time means a period of time when there is no Service available to the Customer. Where the availability of the Service falls below 99.8%, the Customer shall be entitled to Service Credits in accordance with the table below. Circuit availability in each 12 month period Service Credits 99.99% or greater 0% of monthly Rental Less than 99.99% to 99.75% 25% of monthly Rental Less than 99.75% to 99.5% 50% of monthly Rental Less than 99.5% 100% of monthly Rental 8) Technical Support and Service Maintenance a) CHICANE INTERNET undertakes to respond to telephone support calls and provides a helpdesk and a network wide fault analysis and reporting tool. CHICANE INTERNET provides a 24/7/365 manned fault reporting service and have an fault reporting service the details of which are listed below. Any non-working Day faults will be passed on by the fault reporting service to CHICANE INTERNET s engineers to respond to. CHICANE INTERNET aims to respond to a Fault report within 4 hours of notification on a Working Day and 10 hours on a non-working Day. CHICANE INTERNET aims to repair faults ( Target Repair Time ) within 6 hours of notification on a Working Day and 12 Hours on a non- Working Day. Fault reporting address: support@chicane-internet.co.uk In the event that CHICANE INTERNET fails to repair a Fault within the specified Target Repair Time then Service Credits will be payable in accordance with the table below: Hours past Target Repair Time Service Credits Up to 3 5% of monthly Rental 3 to 5 10% of monthly Rental 5 to 7 15% of monthly Rental

7 7 to 9 20% of monthly Rental more than 9 25% of monthly Rental Repair times for non-service affecting faults will be agreed on a case by case basis. No Service Credits shall be payable for failure to repair non-service affecting faults within the Target Repair Time or where Service is being provided by a back-up Circuit. Measurement of Repair Time will commence at the time the Customer or CHICANE INTERNET reports the Fault and will end when CHICANE INTERNET confirms to the Customer that Service has been restored, or in the event that CHICANE INTERNET is unable to contact the Customer, then from the time logged by CHICANE INTERNET that Service is available. Once a Fault has been repaired, CHICANE INTERNET will report to the Customer and agree the repair and response times associated with that Fault. CHICANE INTERNET shall give notification to the Customer for all Scheduled Service(s) maintenance during normal business hours for alteration or suspensions which shall affect the Customer, such notice shall be given at least three (3) days prior to the scheduled event. Where possible CHICANE INTERNET shall implement all Scheduled Service(s) maintenance, alterations or suspensions outside the Working Day. Such maintenance may include but is not limited to deliberate impairment or suspension of Service(s) to the Customer. CHICANE INTERNET will endeavour to ensure that Schedule Service maintenance will not result in no available Service ( Outage ) and will endeavor to provide two (2) weeks notice to the Customer where Scheduled Service may result in an Outage. However CHICANE INTERNET is reliant on third party service providers and can not guarantee that no Outages will occur. Where CHICANE INTERNET has supplied equipment but it is under separate service level agreements with the manufacturers or the distributors of that equipment, CHICANE INTERNET will provide assistance with resolving any faults with this equipment and, where appropriate, will provide loan equipment in case of complete malfunction, subject to availability. Service Credits shall not apply and, for the purposes of these Service Levels, the Services shall be deemed to be available in respect of any period where CHICANE INTERNET's failure to meet the Service Levels results directly or indirectly from: a) a Force Majeure Event; b) any actions or inactions of the Customer (including, without limitation, requests for testing of the Service by Customer although no Fault has been detected, requests for modifications, failure of Customer provided equipment, failure by the Customer to provide access to Service Equipment, failure by the Customer to operate the Services in accordance with this Agreement); c) Service misuse contrary to the Agreement; d) any planned outage (including agreed planned outages and CHICANE INTERNET Scheduled Service outages); e) any fault that is not reported to CHICANE INTERNET; f) any reported period of non-availability where CHICANE INTERNET can find no fault; and, g) any fault that is due to user error. The Customer contact details for any out of Working Day faults are as follows: Name Telephone Mobile 9) Fault Resolution Costs In the event that the Customer becomes aware of a defect, Fault or impairment in the provision of the Service(s) other than as provided in Clause 6, and the Customer gives notification to CHICANE INTERNET of such default, fault or impairment, then CHICANE INTERNET shall use its reasonable efforts to resolve the defect, fault or impairment as described in Clause 6. If it is determined that the defect, fault or impairment is a result of:

8 a) the negligence, willful acts, omissions, or faults of the Customer or its agents; or, b) the Customer or its agent's breach of this Agreement; or, c) the failure or malfunction of Customer Equipment then CHICANE INTERNET may recover from the Customer all reasonable costs incurred in remedying the defect, fault or impairment limited to a maximum of 6,000 (six thousand) per event. 10) Services and Equipment a) In order that it may continue to maintain the level and quality of the Services provided, CHICANE INTERNET reserves the right at all times to change or alter the configuration of the Service provided under this Agreement working in partnership with the Customer. CHICANE INTERNET shall where possible, use reasonable efforts to give at least thirty (30) days prior notice to the Customer of such change or alteration. b) CHICANE INTERNET or its subcontractors may, with reasonable notice, substitute, change, rearrange, or reconfigure the Service Equipment used in providing the Service(s) at any time, but shall not thereby alter the technical functionality of the Service(s) provided except where such alteration is made pursuant to sub-clause 8 a) above. c) Title to the Service(s) Equipment shall at all times belong to and remain with CHICANE INTERNET (or its subcontractors) and the Customer shall not create or allow any changes, liens or other encumbrances whatsoever to be placed on the Service(s) Equipment. d) If the Customer desires to relocate or otherwise change the place at which the Service(s) is delivered, then at CHICANE INTERNET'S discretion, the Customer may be required to pay any additional installation charges for the new location and any Service(s) support costs resulting from such agreed relocation or change of the place of the Service(s). Relocation costs will be agreed in advance of work commencing. e) The Customer acknowledges that CHICANE INTERNET provides the telecommunications network facilities underlying the Services provided by CHICANE INTERNET and nominated providers it may choose. The use of CHICANE INTERNET'S telecommunications network facilities is subject to the following terms, breach of which may result in suspension or termination of the Customer's right to use the Services. 11) Customer Obligations a) The Customer shall allow CHICANE INTERNET and its sub-contractors continuous access and right-of-way to the Customer's premises appropriate and necessary to the provision and maintenance of the Services(s) and Service Equipment. The Customer shall furnish CHICANE INTERNET and their subcontractors, at no charge, such equipment, space and electrical power as is reasonably required by CHICANE INTERNET and their subcontractors to enable CHICANE INTERNET to render the Service(s). Reasonable notice will be given for requests for access. b) The Customer shall be liable for any and all damages to Service Equipment which is caused by (i) (ii) negligent or willful acts or omissions of the Customer or the Customer s breach of term of this Agreement, or; malfunction or failure of any equipment or facility provided by the Customer or its agents, employees, or suppliers, including but not limited to the Customer Equipment. c) The Customer shall ensure at all times that the Customer Equipment shall conform to the relevant national standards of approval and the Customer shall at all times comply with the conditions of such standard or approval. CHICANE INTERNET reserves the right to disconnect any Customer Equipment if the Customer does not fulfill its obligations under Sub clause 9 b) and if in the opinion of CHICANE INTERNET or its subcontractors it is liable to cause the death of or personal injury to, or damage the property of CHICANE INTERNET or its subcontractors or

9 any person or will impair the quality of any Services provided by CHICANE INTERNET to any of its other Customers. d) The Customer undertakes: 1) To house the Service Equipment in accordance with CHICANE INTERNET's instructions as may be notified to the Customer from time to time, this shall include, but not be limited to, the provision of electrical power to the Service Equipment. CHICANE INTERNET shall not be liable for any fault or depreciation of Service(s) due to failure of the supply of electrical power to the Service Equipment: such a failure shall be deemed a failure of Customer Equipment for the purposes of assessing whether or not a fault or depreciation of service constitutes a Service Interruption. 2) To keep the Service Equipment at the Customer's premises and stationary at all times. 3) Not to add, modify, relocate, reconfigure or in any way interfere with the Service Equipment. 4) Not to cause the Service Equipment to be removed, repaired, serviced or otherwise attended to except by an authorised representative of CHICANE INTERNET. 5) Not to remove, tamper with or obliterate any words or labels from the Service Equipment or any parts thereof. 6) Not to use the Service Equipment except in accordance with such written instructions as may be notified by CHICANE INTERNET from time to time. 7) On termination of this Agreement (howsoever the same may arise) to yield up the Service Equipment in a good state of condition and repair to CHICANE INTERNET and to allow CHICANE INTERNET or its subcontractors access to the Customer premises to remove the Service Equipment. 8) The Customer undertakes to indemnify and keep indemnified CHICANE INTERNET against any prosecution, civil or criminal, all costs, claims, demands, actions and proceedings which may be brought or threatened against CHICANE INTERNET by any user or third party either to whose networks the Customer s networks connect, expressly including, but not limited to uses of the Internet which arise from the Customer s use or Customer's employees use of Internet Services. 9) The Customer represents that it is in paramount control of the use of the Services for the purpose of determining responsibility for property rates or other similar rates directly associated with the Services and hereby indemnifies CHICANE INTERNET against all costs incurred by CHICANE INTERNET associated with such rates. 12) Termination This agreement shall remain in force for a minimum of 36 months from the Commencement Date. Termination can be effected as follows: a) The Customer and CHICANE INTERNET may terminate this agreement by giving three months written notice to each other at least three months before the expiry of the term. Should either Party fail to provide the three months notice at least three months before the expiry of the Term, the Agreement shall automatically renew for a further twelve months under the provisions of Clause 3 above. b) CHICANE INTERNET can terminate the contract or suspend the Service if the Customer fails to make any payment when it becomes due to CHICANE INTERNET. The Customer may terminate the contract if CHICANE INTERNET defaults in due performance or observance of any material obligation under the Agreement or, in the case of a remediable breach, fails to remedy the breach within thirty (30) days. c) CHICANE INTERNET reserves the right to invalidate or reissue to other parties any Customer's Username(s), Password(s) or Internet Address(es) issued to the Customer following

10 termination of this agreement except where specific agreement has been reached in writing between CHICANE INTERNET and the Customer for the transfer of the username and Internet Address and the fee or other payments required by CHICANE INTERNET in connection with such transfer has been paid in full by the Customer. d) There will be no refund of Customers payments upon termination of the agreement whether made by either CHICANE INTERNET or the Customer. e) If the Customer terminates this agreement at any time after the end of the 36 month period without giving three months notice as required above, CHICANE INTERNET will charge a Termination Charge of three month's annual fee, payable at the date of termination. If the Customer upgrades to a higher level CHICANE INTERNET service from an existing service at any time, it will not be liable to any termination fee. 13) Rights on Termination a) Termination of the agreement shall not affect any pre-existing liability of the Customer or affect any right of CHICANE INTERNET to recover damages or pursue any other remedy in respect of any breach by the Customer of the agreement. b) Any termination of this agreement, howsoever occasioned, shall not affect the accrued rights or liabilities of either party. c) Upon Termination of this Agreement, the Customer shall immediately cease to make use of the relevant Services and allow CHICANE INTERNET to enter the Customer s premises during normal business hours for the purposes of removing Service Equipment. 14) Assignment This Agreement is personal to the Customer and the Customer shall not be entitled to assign, transfer either to an Associated Company or to any other third party or otherwise dispose of this Agreement in whole or in part or any of its rights hereunder without the previous written consent of CHICANE INTERNET, such consent not to be unreasonably withheld, and subject to all three (3) parties executing an agreed form deed of novation. CHICANE INTERNET shall be entitled to assign this Agreement, including any of its obligations, on written notice. CHICANE INTERNET shall also be entitled to engage subcontractors to carry out all or any of the Services but shall remain liable to the Customer for such Service. 15) Liability a) The following provisions and set out each Party s entire liability (including any liability for the acts and omissions of its employees or agents) to the other Party in respect of: 1) any breach of its contractual obligations arising under the Agreement. 2) any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement. b) Any act or omission on the part of either Party or its employees or agents falling within Clause 13 a) shall for the purposes of this Clause 13 be known as an Event of Default. c) Subject to the provisions of Clauses 6 and 7, each Party s entire liability in respect of any Event of Default or series of connected Events of Default shall be limited to damages not exceeding one hundred percent (100%) of the payments payable by the Customer for the Services under the Agreement during the one month immediately preceding the date of the Event of Default. d) Subject to Clauses 6 and 7, neither Party shall be liable to the other Party in respect of any Event of Default for: a) loss of profits; b) loss of business; c) loss of revenue; d) loss of goodwill; e) loss, corruption or destruction of data; and, f) any type of special, indirect or consequential loss (including loss or damage suffered by the other Party as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Party had been advised of the possibility of the other Party incurring the same.

11 e) A failure by either Party to perform its obligations under the Agreement shall not be treated as an Event of Default if and to the extent that such failure was caused by an Event of Default of the other Party. 16) Disputes Any disputes, controversies or claims arising out of this Agreement shall first be referred to the Parties respective Representatives. The respective Representatives will review the nature of the dispute together within thirty (30) days of the dispute arising and if they cannot reach agreement on the dispute within such thirty (30) day period, the matter shall be referred to the Chief Executive Officer or Managing Director of that part of the relevant Party s business which is responsible for performing the obligations of that Party under the Agreement. If the Chief Executive Officer or Managing Director are themselves unable to resolve the matter within thirty (30) days of the first request so to do the Parties shall be free to pursue the matter.

12 17) Governing Law and Jurisdiction This Agreement shall be governed by and construed and interpreted in accordance with the laws of England and the Parties hereby submit to the non-exclusive jurisdiction of the English Courts.

13 APPENDIX I n/a

14 APPENDIX II Circuit Schedule The Service will be subject to standard UK lead times plus other factors such as Civil Works, third party contractors, wayleave, & traffic management plus any other route-related hazards / obstacles / blockages. Delays in Service provision can, on occasion, occur due to these factors and is outside the control of Chicane Internet Ltd.

15 APPENDIX III AGREED ORDER As per attached. PR