Service Level Agreement

Service Level Agreement

1. Coverage

   This Service Level Agreement (SLA) applies to you ("customer") if you have ordered any of the dedicated servers, colocation, Business Plus Web Hosting, Reseller Plus or Ecommerce Plus services from Midphase (the "Services") and your account is current (i.e., not past due) with Midphase. As used herein, the term "Server Availability" means the percentage of a particular month (based on 24-hour days for the number of days in the subject month) that the content of customer's Web site or Operating System (OS) is available for access by third parties via HTTP, HTTPS, Remote Desktop, Terminal Services and SSH, as measured by Midphase.

2. Goal

   Midphase's goal is to achieve 100% Server and Network Availability for all customers.

3. Remedy

   Subject to below, if the Server Availability of customer's Server is less than 100%, Midphase will issue a credit to customer in accordance with the following schedule, with the credit being calculated on the basis of the monthly service charge for the affected Services:

   Server Availability Credit Percentage:

   99.9% to 100.00% = 0%
   99.9% to 98.00% = 10%
   97.99% to 97.00% = 25%
   Less than 96.99% = 50%
   

4. Exceptions

   Customer shall not receive any credits under this SLA in connection with any failure or deficiency of Server Availability caused by or associated with:

   1. Circumstances beyond Midphase's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, eCommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;
   2. Failure of access circuits to Midphase, unless such failure is caused solely by Midphase;
   3. Scheduled maintenance and emergency maintenance and upgrades;
   4. DNS issues outside the direct control of Midphase;
   5. Issues with FTP, POP, or SMTP customer access;
   6. False SLA breaches reported as a result of outages or errors of any Midphase measurement system;
   7. Customer's acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc), any negligence, wilful misconduct, or use of the Services in breach of Midphase's Terms and Conditions and Acceptable Use Policy;
   8. E-mail or webmail delivery and transmission;
   9. DNS (Domain Name Server) Propagation.
   10. Outages elsewhere on the Internet that hinder access to your account. Midphase is not responsible for browser or DNS caching that may make your site appear inaccessible when others can still access it. Midphase will guarantee only those areas considered under the control of Midphase: Midphase server links to the Internet, Midphase's routers, and Midphase's servers.
5. Credit Request and Payment Procedures

   In order to receive a credit, customer must make a request therefore by submitting a ticket to our billing department via https://www.midphase.com/support/. Each request in connection with this SLA must include customer's account number (per Midphase's invoice) and the dates and times of the unavailability of customer's server and must be received by Midphase within seven (7) business days after customer's server was not available. If the unavailability is confirmed by Midphase, credits will be applied on the next billing cycle after Midphase's receipt of customer's credit request. Credits are not refundable and can be used only towards future billing charges.

   Notwithstanding anything to the contrary herein, the total amount credited to customer in a particular month under this SLA shall not exceed the total server fee paid by customer for such month for the affected Services. Credits are exclusive of any applicable taxes charged to customer or collected by Midphase and are customer's sole and exclusive remedy with respect to any failure or deficiency in the Server Availability of customer'sserver.

   Credits are not refundable and can be used only towards future billing charges.

6. Taxes

   At Midphase's request Customer shall remit to Midphase all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Midphase) regardless of whether Midphase fails to collect the tax at the time the related services are provided.

7. Early Termination

   Customer acknowledges that the amount of the fee for Services is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Midphase terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for UK2's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due seven (7) business days following termination of the Agreement.