Updated August 31, 2009
The Cloud Service Level Agreement ("SLA") is a policy governing the use of the Terremark vCloud Express Service under the terms of the Terremark Cloud Service Agreement (the "Agreement") between Terremark North America, Inc. ("Terremark", "us", or "we") and users of the vCloud Services ("you"). This SLA applies to each account using vCloud Express. Unless otherwise provided herein, this SLA is subject to the terms of the Agreement and capitalized terms will have the meaning specified in the Agreement. We reserve the right to change the terms of this SLA in accordance with the Agreement.
1. Service Commitment.
Terremark will use commercially reasonable efforts to make vCloud Express available with a Monthly Uptime Percentage of 100%. In the event Terremark does not meet the Monthly Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.
"Service Month" is defined as commencing on the first day of a 30 calendar day month at 00:00:00 Coordinated Universal Time ("UTC") through the last day in that calendar month ending at 23:59:59 UTC.
"Monthly Uptime Percentage" is calculated by subtracting from 100% the percentage of fifteen (15) minute periods during the Service Month in which vCloud Express is Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any of the Exclusions provided herein.
"Unavailable" means that either the vCloud Express Web Console or infrastructure, and network connectivity, up to the Terremark Network Demarcation Point, are inaccessible by you for the entire fifteen (15) minute period.
"Terremark Network Demarcation Point" extends from the vCloud Express infrastructure to the data center located router that provides the outside interface of each of Terremark's WAN connections to its backbone providers.
The "Eligible Credit Period" is a single month and refers to the monthly Billing Cycle in which the Monthly Uptime Percentage was not 100%.
A "Service Credit" is equal to (1) dollar (USD), calculated as set forth herein, that we may credit back to you.
2. Service Commitment and Service Credits.
If the Monthly Uptime Percentage for a customer drops below 100% during a Service Month, that Customer is eligible to receive one (1) Service Credit for every fifteen (15) minute period that vCloud Express was Unavailable up to a maximum amount equal to fifty (50) percent of the usage fees calculated during the Eligible Credit Period. For the purposes of determining Service Credits Customer will only be eligible for Service Credits related to the unavailability of a) the vCloud Express Web Console or 2) the infrastructure and network connectivity, whichever was least available during the Billing Cycle.
We will apply any Service Credits only against future vCloud Express payments otherwise due from you; provided that, a) we may issue the Service Credit to the payment method associated with your vCloud Express account for the Billing Cycle in which the Unavailability occurred, b) you are current with all payment obligations set forth in the Agreement, and c) your total calculated usage fees for the Eligible Credit Period is greater than or equal to $100. Service Credits shall not entitle you to any refund or other payment from Terremark. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Service Credits are your sole and exclusive remedy for any unavailability or non-performance of vCloud Express.
3. Credit Request and Payment. Procedures.
To receive a Service Credit, you must submit a request by sending an e-mail message to email@example.com. To be eligible, the credit request must (i) include vCloud Express SLA Service Credit Claim in the subject of the e-mail message; (ii) include, in the body of the e-mail, your username, the dates, times, and length of each Unavailability period that you claim to have experienced; (iii) and any documentation that corroborates your claimed Unavailability; and (iv) be received by us within thirty (30) calendar days of the last day reported in the Unavailability claim. If the Monthly Uptime Percentage of such request is confirmed by us and is less than 100% for the Service Month, then we will issue the Service Credit to you within one Billing Cycle following the month in which the request is confirmed. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit. Terremark's data and records will be the sole factor for validating claims due to Unavailability.
The Service Commitment does not apply to any unavailability, suspension or termination of vCloud Express, or any other performance issues: (i) that result from Service Suspensions described in the following sections of the Agreement: Term, Termination, and Suspension or Effect of Termination or Suspension; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the Terremark Network Demarcation Point; (iii) that result from any actions or inactions of you or any third party; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); (v) that result from failures of individual functions, features, infrastructure, and network connectivity Unavailability; or (vi) arising from our suspension and termination of your right to use vCloud Express in accordance with the Agreement (collectively, the "vCloud Express SLA Exclusions"). If availability is impacted by factors other than those explicitly listed in this agreement, we may issue a Service Credit considering such factors in our sole discretion.