SERVERS.com (hereinafter "SERVERS") and you (hereinafter “CUSTOMER”) may be referred to individually as a “Party” or collectively as the “Parties.” CUSTOMER use of the SERVERS services constitute automatic acceptance of this Agreement.
2.1 CUSTOMER is responsible for maintaining CUSTOMER’s Equipment, whether legal property of SERVERS or CUSTOMER.
2.2 Subject to the chosen SLA level by CUSTOMER and the procedures defined in this SLA, SERVERS shall provide the support services described in this SLA to CUSTOMER’s Equipment (“SLA Support”).
2.3 CUSTOMER may also request SERVERS to perform support outside of the SLA or certain additional support services (the “Additional Support”) described in this SLA at SERVERS's then current rates.
2.4 SERVERS shall not charge CUSTOMER for SLA Support and/or Additional Support utilized to remedy any event or condition caused by SERVERS’s gross negligence or willful misconduct. SERVERS shall charge CUSTOMER for SLA Support and/or Additional Support utilized to remedy any event or condition not caused by SERVERS’s gross negligence or willful misconduct.
2.5 SERVERS may decline a CUSTOMER request to perform Additional Support in SERVERS’s sole discretion, in which case the performance of such services shall be CUSTOMER’s sole responsibility. Notwithstanding the foregoing, SERVERS may withhold its approval of CUSTOMER’s performance of certain services in SERVERS’s sole discretion if such services are unavailable at the relevant Data center or if SERVERS and/or CUSTOMER are otherwise prohibited from performing such services at the Data center.
3.1 SERVERS shall use commercial best efforts to provide 99.99% Services availability. Services availability is calculated by the number of hours the service is available to customers plus the total number of hours, if any, the service is scheduled to be unavailable, divided by the total number of hours in that month. In the event that there is no services availability, SERVERS will credit the following month's service fee as follows:
- 99.9% to 99.98%: 5% credit
- 95% to 99.8%: 25% credit
- 90% to 94.9%: 50% credit
- 89.9% or below: 100% credit
In order for the CUSTOMER to receive a credit on his account, CUSTOMER must request such credit within seven (7) business days after he experienced no Services availability. CUSTOMER must request credit by sending an electronic mail message to support@servers.com For security, the body of this message must contain CUSTOMER’s server ID, the dates and times of the unavailability of CUSTOMER’s services, and such other customer identification requested by SERVERS. Credits will usually be applied within sixty (60) days of CUSTOMER’s credit request. Credit to CUSTOMER’s account will be CUSTOMER’s sole and exclusive remedy in the event that there is no Services availability.
Credits will not be provided to CUSTOMER in the event that CUSTOMER has no Services availability resulting from:
a) Scheduled maintenance:
i) as posted from time to time at www.servers.com and/or
ii) via direct contact from SERVERS to CUSTOMER;
b) CUSTOMER’s behavior or the performance or failure of CUSTOMER’s equipment, facilities or applications, or circumstances beyond SERVERS’S 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 or third party services (including DNS propagation); failure of third-party software or hardware; or inability to obtain raw materials, supplies, or power used in, or equipment needed for, the provision of the services.
4.1 SERVERS shall use commercially reasonable efforts to respond to CUSTOMER.
4.2 Response time is defined as the period of time in which the SERVERS engineer has to respond to a CUSTOMER’s maintenance call.
4.3 CUSTOMER shall be reachable on CUSTOMER’s Emergency numbers, specified in an Order Form.
CUSTOMER may request SERVERS, to perform Additional support such as software loading, hardware upgrades, and otherwise upgrade CUSTOMER’s equipment (the “Upgrading”). SERVERS may accept or decline CUSTOMER’s request in its sole discretion. CUSTOMER must provide SERVERS with a full written description of the procedures to be performed and have on-line support available to SERVERS technicians performing Upgrading. Notwithstanding the foregoing, SERVERS does not represent or warrant that its employees have the technical expertise required to address any technical issues that may arise during any Upgrading activity. SERVERS shall charge CUSTOMER for Upgrading at its then current Support rates.
6.1 CUSTOMER shall not make structural alterations to the equipment covered by this SLA, without SERVERS’s prior written consent.
6.2 Support not defined by this SLA is not covered by the SLA Support.
6.3 This SLA is based on a Best-Effort policy. SERVERS does not guarantee that CUSTOMER’s equipment will be repaired and/or replaced.
6.4 In the event of any breach of the Master Agreement and/or an Order Form by CUSTOMER, in addition to any other remedies available to SERVERS, SERVERS shall have the right to suspend this SLA, including SLA Support. SERVERS shall notify CUSTOMER of the suspension and its justification therefore as soon as practicable after the commencement of the suspension.