Virtual Server Colocation Service Level Agreement
This Service Level Agreement (“Agreement”) is a legal agreement between you (the “Customer”) and Silicon Plains, LLC (“SP”) for virtual server co-location services. By using the services, you accept all of the terms and conditions of this Agreement.
1 Definition of Service:
SP shall provide to Customer the Service and the related Technical Support Services. SP shall use commercially reasonable efforts to provide you with the service availability outlined in this agreement.
SP will provision and maintain a VMware-based virtual machine hosting Service. This Service will accommodate individual virtual machine space for the purpose of providing server-based application hosting and associated services to Customer and its end-users.
This Service will accommodate the use of Windows™ or Linux™-based virtual machines. SP does not support operating systems not directly supported by the most current release of VMware and its associated software modules or packages.
Bandwidth available is 10 Mb/s, burstable to 40 Mb/s. SP will monitor and take action on any bandwidth utilization that appears to violate any part of this Agreement. Customer is responsible for the reasonable utilization of bandwidth by its Virtual Server(s). SP does not guarantee proper operation of Customer Virtual Server(s) once the bandwidth limit has been reached.
Standard Individual Virtual Machine Resource Allocation is 4GB RAM, (1) 2-core virtual CPU, 500 GB disk space. Additional disk space, RAM and virtual CPU configurations are available for an additional fee.
1.1
Features
Service will include the following features at no additional cost.
Data Center: SP leases co-located space in the Dakota Carrier Network data center located in Bismarck, ND. This facility built in 2012 provides a 24/7 Network Operations Center, keycard and fingerprint access to the Colocation space, camera surveillance, locked equipment racks, ANSUL dry fire suppression, 550KVA N+1 redundant UPS and a 99.599% data center uptime guarantee. Power: Electrical power is provided to SP equipment through a large array of batteries, backed by twin CAT diesel generators with sufficient capacity to power the DCN Data Center indefinitely.
Cooling: DCN utilizes a hot/cold-aisle cooling system in their co-location space, keeping equipment temperature and humidity consistent and free from static electricity.
Internet/Network and Routing: DCN maintains direct connectivity to multiple large Internet service providers.
Virtual Environment: SP maintains a large Storage Area Network and multiple physical servers providing disk, CPU and RAM capacity to Customers.
1.2
Moves, Adds and Changes
2 Service Delivery
2.1
General
It is Customer’s responsibility to ensure that all Users computers are able to connect to Service and are configured properly. This includes but is not limited to Ethernet switches, Ethernet cabling, workstations, servers, operating systems and software.
2.2
Installation
Standard installation timeframe for Service is approximately 8 working days from the project start date.
If additional configuration work is required due to limitations of the Customer systems, including but not limited to servers, workstations or network, then SP reserves the right to bill customer at current hourly rates for additional configuration time. Except as otherwise defined within this agreement, SP is NOT responsible for and will not be obligated to provide any assistance in configuration, installation, administration, troubleshooting, maintenance, or repair of equipment or software, or integration of equipment or software into Customer’s internal network. Such services may be available at an additional cost.
Customer shall be responsible for any travel expenses incurred by SP in the course of providing onsite installation service.
2.3
Service Termination
SP makes no guarantee of Service availability beyond the termination date.
SP shall not be responsible for retaining any of your Data after termination date of Service. Your Data may be deleted on the day of Service termination. SP will not restore, provide on any storage media or send out any Data pertaining to terminated
Service, unless specifically noted in a customized service agreement. It is Customer’s responsibility to backup Data prior to termination of Service.
Service plans will automatically renew until a plan is terminated. In order to terminate service, you must contact SP, Monday through Friday, 8:30 A.M. to 5:30 P.M. MST (1-701-390-9876) or by email at answers@siliconplains.net.
Termination requests must be received by SP a minimum of ten (10) days prior to the end of the month. Terminations submitted later than this time will result in billing for the following month. Termination will take affect the last day of the month. SP will confirm the termination request when it is processed. If you do not receive a confirmation, please contact SP as soon as possible. SP does not monitor, and will not automatically terminate, plans for problems related to domain name transfers, non-usage, your ISP, or any other secondary issues not directly related to SP's services. Termination of services does not relieve the Customer from paying any outstanding balance owed. SP reserves the right to cancel any account, at any time, without notice, for any reason SP considers appropriate.
3 Billing
3.1
Service Activation Date
The Service Activation Date is the date on which Service is activated for Customer by SP. The Service Activation Date may or may not correspond to the date Customer first uses Service. Billing for the Service Component will begin on the Service Activation Date.
3.2
Field Technician Charge (FTC)
The FTC is the charge incurred for each dispatch of a SP technician to support Service installation or trouble. This fee shall be calculated based on the current hourly rates and shall be rounded up to the nearest full hour. This fee may be waived at SP’s sole discretion for Customers of Managed Services if the root cause for the dispatch is determined to be the responsibility of SP.
3.3
Travel
Customer shall be responsible for travel expenses incurred by SP during activation or support of Service as follows: For Customer locations in the domestic US between 30 and 100 miles from the nearest SP office:
For Customer locations in the domestic US greater than 100 miles from the nearest SP office: o All provisions of travel to Customer locations within 100 mile radius of nearest SP office; o Airplane, bus or train tickets at SP cost;
o Rental car, gas and parking at SP cost; o Per diem allowance of $40/day (food); and o Hotel/lodging at SP cost.
Other Customer locations require signed agreement between SP and Customer.
3.4
Billing Terms
Invoicing
o Invoices will be delivered once a quarter via email or mail at the Customer’s preference.
o Customer will be billed in advance for the number of active Service accounts on the billing date at the agreed upon rate.
o “Due Upon Receipt” terms are understood and enforced for all invoices. Payment
o Customer may pay using the following forms: Check (business or otherwise), Visa Debit or Credit, MasterCard Debit or Credit, or Discover Debit or Credit.
o As applicable by law, SP reserves the right to pass on any or all merchant fees associated with electronic (noncash or check) payments. This fee will be restricted to the amount of actual merchant fees associated with the payment.
o Mailed payments are to be sent to Silicon Plains PO Box 3219 Bismarck, ND 58502. Delinquent accounts
o Delinquent accounts are defined as any Customer account with an owed balance 30 calendar days past due. o Any balance not paid in full 30 calendar days from invoice date will be subject to interest charges on the
remaining balance at the full amount applicable by state law.
o SP reserves the right to terminate any account with an owed balance over 30 calendar days. All remaining balances will be due immediately upon Service Termination. See Section 2.3 Service Termination for additional details.
4 Customer Responsibilities:
End users will be required to maintain complex passwords for their end user accounts.
SP is not responsible for unexpected use of Services whether by ex-employees, compromised user passwords, or any other misuse of Customer accounts.
Customer shall be fully responsible for providing to SP at Customer’s own expense and in a timely manner the following: All security for its Services and systems used or accessible in connection with Service;
Cooperative testing of all Customer-provided hardware, software, and Services for compatibility with Service; Designating an Authorized Contact(s) to be the point of contact to interface with SP Technical Support; and
5 Prohibited Uses
5.1
General
5.2
High Risk Use
You may not use the Services for any application where a failure of those Services could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. You acknowledge that we make no assurances that the Services are suitable for any high-risk use.
6 Service Support
6.1
Helpdesk
Customers must contact SP Support to report service trouble or an outage with SP Technical Support. SP Technical Support will be available seven (7) days per week; (8) hours per day, 365 days per year. SP Technical Support provides support for network monitoring, trouble ticket resolution, and fault isolation up to the termination equipment.
SP Technical Support will accept trouble and outage related support calls from any customer representative. SP will not perform any requested activity which may cause Service disruption or perform any changes to Service unless request is initiated by an Authorized Contact. SP reserves the right to delay response on support tickets opened by anyone other than the Authorized Contact.
Communication between Customer and SP not initiated by Authorized Contact will not be subject to Agreement remedies. All communications with Customer will be in the English language.
To contact the Helpdesk, e-mail answers@siliconplains.net or call 701-390-9876.
6.2
Support Limitations
SP Technical Support is not responsible for end-user support of issues not directly related to Service. This includes (but is not limited to) Customer operating systems, Customer equipment, or Customer application support. SP reserves the right to bill customer at current hourly rates for configuration requests that are not required to provide Service outlined herein.
6.3
Monitoring
SP performs monitoring of Service availability. If Service is unavailable SP support personnel are notified immediately and will begin efforts to restore service.
6.4
Backup and Recovery
SP will provide backups of the Service platform and general data stored within for Disaster Recovery purposes. SP will make its best effort to recover data within a mean time of four (4) hours in a disaster scenario. A disaster may be declared by SP when Service has been damaged or degraded to such an extent that SP can no longer reasonably provide Service. Customer shall not be able to declare any outage a disaster. Sole responsibility for defining an event as a “disaster” will rest with SP alone.
SP is not liable for the loss of any customer data, nor does it guarantee the recoverability of customer data that is deleted (accidentally or purposefully) by Customer end users. Additional fees may apply for recovery of customer specific data and SP will work on these requests on a best effort basis.
Access to the SP operations center and systems is restricted to authorized personnel. SP ensures that its employees and contractors are familiar with and understand our privacy policies and that they take all possible security measures to protect the privacy of Customer data. SP will make our best commercial efforts to protect the security of our systems and services, and the data that resides therein. All Customer data is protected with RAID hard drives to protect from hard drive failure.
6.5
Maintenance
Customer is responsible for maintaining and updating Authorized Contact list with SP. SP will not be held responsible for maintenance notifications missed due to out-of-date Authorized Contact information.
Maintenance window for disruptive work to Service will be limited 12:00 AM to 4:00 AM Central Daylight Time (CDT), any day with requirement of one (1) calendar week notification to Customer prior to maintenance. SP will send an e-mail notification of such disruptive maintenance to Service to Authorized Contacts of Customer. Once notification is sent to Customer this will be considered a “Scheduled Maintenance”. Any Service SLAs will NOT apply during a Scheduled Maintenance.
7 Modifications
SP may discontinue, upgrade, replace, modify, or change in any way, without limitation, any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide Customer with SP's services. Certain changes to SP's services may affect the operation of Customer's personalized applications and content. Each Customer is solely responsible, and SP is not liable, for any and all such personalized applications and content, except as expressly agreed to by SP.
8 Service Level Agreement
When we use the term “Service Level Agreement” or “SLA” anywhere in this Agreement, we are referring to the service level agreement set forth in this Section 8. We will use commercially reasonable efforts to make the Services available 99.5% of the Service Year. ”Service Year” means the three hundred sixty five-day period immediately preceding a claim for a service credit.
8.1
Service Credit
Uptime for each Service Year will be calculated by subtracting from 100% the percentage of time during which our Infrastructure was unavailable to all of our Service clients (the “Uptime Percentage”). If the Uptime Percentage for the Service Year is less than 99.5%, you will be eligible for a service credit equal to 15% of your Service bill for the calendar month in which the Uptime Percentage dropped below 99.5%. The Uptime Percentage will be calculated using five-minute increments.
8.2
Downtime Exclusions
Downtime does not include unavailability caused by one or more of the following: maintenance, a suspension, or a termination of the Services;
the failure of servers or services outside of a datacenter on which the Services are dependent, including, but not limited to, inaccessibility on the Internet that is not caused by our Infrastructure or network providers;
a force majeure event such as an act of God, act of war, act of terrorism, fire, governmental action, labor dispute, and any other circumstances or events not in our direct control;
an attack on our Infrastructure, including a denial of service attack or unauthorized access (i.e., hacking);
unavailability not reported by you in accordance with the reporting provisions in Section 8(c) within five (5) of the days of the date on which the Uptime Percentage dropped below 99.5%;
your use of a separate SP service that is not subject to this SLA;
unavailability that results from the failure of individual Servers and that is not attributable to an event causing unavailability to all clients using the Services; or
unavailability that is caused by your breach of this Agreement.
8.3
Service Credit Procedures
SP will determine, in our reasonable discretion, your eligibility for service credits and the amount of service credits awarded pursuant to this SLA. To be eligible for service credits, you must send us a reasonably detailed, written request for service credits no later than five (5) Business Days after the day on which your Uptime Percentage first drops below 99.5%. To be deemed valid, your request must include:
the dates and times of each period of Service unavailability upon which your request is based; the instance names of the affected Servers; and
a description of any events from the Services portal that may have indicated a system-wide unavailability during the stated dates and times. If your Uptime Percentage is confirmed by us to be less than 99.5% for the Service Year, we will issue a service credit during the billing cycle following the month in which we determine that you are eligible for one. All service credits will be applied to fees due from you to us for Services; we will not pay any service credit to you as a refund. If you fail to provide us with a valid request, you will not be eligible for a service credit. Our calculation of your Uptime Percentage and all service credits will be based on our records and data. Any dates and times that you previously reported that led to a successful service credit claim cannot be used for future claims.
8.4
Limitation
The Service credits described in this SLA are your sole and exclusive remedy for the unavailability of the Service.
9 Privacy
SP will not knowingly monitor, edit or disclose the contents of your private communications with third parties unless required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the law or comply with legal process served on SP; (b) protect and defend the rights or property of SP; or (c) act under exigent circumstances to protect the personal safety of our Customers or the public. You acknowledge and agree that SP neither endorses the contents of any of your communications nor assumes responsibility for such content, including but not limited to any threatening, libelous, obscene, harassing or offensive material contained therein, or any infringement of third party intellectual property rights arising there from or any crime facilitated thereby. You acknowledge and agree that certain technical processing of e-mail messages and their content may be required to: (a) send and receive messages; (b) conform to connecting networks' technical requirements; (c) conform to the limitations of the e-mail service; or (d) conform to other similar requirements.
10 Actions Taken by SP
The failure by a Customer to meet or follow any of the Agreement is grounds for account deactivation. SP will be the sole arbiter as to what constitutes a violation of the Agreement. SP reserves the right to remove any account without prior notice and to refuse service to anyone at any time. When SP becomes aware of an alleged violation of its Agreement, SP will initiate an investigation. During the investigation, SP may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, SP may, at its sole discretion, restrict, suspend, or terminate a customer's account and/or pursue other civil remedies. If such violation is a criminal offense, SP will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the Agreement if it is illegal, irresponsible, or constitutes disruptive use of the Internet. SP does not issue credits for outages incurred through service disablement resulting from Agreement violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by SP.
11 Disclaimer
The SP Service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. SP expressly disclaims any representation or warranty that the SP service will be error-free, secure or uninterrupted. No oral advice or written information given by SP, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. SP and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.
12 Indemnification
Customer agrees to indemnify, hold harmless and defend SP, its members, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement ; (b) Customer's use of the Service, including any data or work transmitted or received by Customer; and (c) any unacceptable use of the Service by Customer or through Customer's account, including, without limitation, any statement, data or content made, transmitted or republished by Customer which is prohibited as unacceptable in this Agreement .
13 Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL SP BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, CUSTOMER'S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL SP'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID, IF ANY, BY CUSTOMER TO SP HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO CUSTOMER. IF CUSTOMER IS DISSATISFIED WITH THE SERVICE, CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR CUSTOMER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. SP IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF THE SERVICE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR CUSTOMER TO OBTAIN THE RIGHTS TO USE THE SERVICE AT THE SPECIFIED PRICE, IF ANY. CUSTOMER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY SP CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
14 Force Majeure
Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of Customer for the payment of money due.
15 Scope of Agreement; Entire Agreement
This Agreement constitutes the final and entire agreement between the parties regarding its subject matter, and it supersedes all other oral or written agreements or policies relating thereto. Additional or different terms in any written communication from Customer, including any purchase order or request for other services from SP, are void.
16 Miscellaneous
Control and Ownership of IP. We maintain and control all IP numbers and addresses that may be assigned to you, and we reserve, in our sole discretion, the right to change or remove any and all IP numbers and addresses.
Resale of Services and Flow-down of Obligations. You may resell space on your own Virtual Servers but you must first obligate any such resale to the same terms of this Agreement and incorporate into that resale all of our rights, including our rights regarding content and activity. Age. You certify that you are at least 18 years of age.
