PRIVATE CLOUD SERVICES (PCS)

1. Services

1.1. Services Provided.  The services (the “Services”) chosen by the Client are the Netology Private Cloud infrastructure resources and support services (“PCS”). Netology will provide server resources to Client from Netology’s utility computing infrastructure. Netology will provide management and support services for the PCS environment. The Client is responsible for the complete operation and provisioning of all third party software applications installed on the PCS server within the Netology data center. The Client shall only have access to the Netology data center upon prior notice to and under supervision by Netology.

1.2. 99.5% Uptime Guarantee (Network and Data Center Infrastructure). Subject to the limitations contained in the Master Services Agreement and this SLA, Netology warrants that the average switch port availability shall be no less than 99.5% per calendar month. The month begins on the first day of each calendar month and continues until the last day of that month. In the event of any loss or interruption of Client Services resulting in less than 99.5% uptime and which is due to (i) causes other than scheduled maintenance and required repairs, (ii) causes beyond the control of Netology, (iii) downtimes that occur as a result of power or heat issues, (iv)causes which are not reasonably foreseeable by Netology, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures or iv) causes not due to Client’s noncompliance with any of the terms and conditions of the Master Services Agreement, Client shall receive, and will constitute Netology’s sole and exclusive liability for any loss or interruption of Client Services, a credit equal to one day’s fee per hour of excess down time up to one month’s fee for Client Services. Client shall receive advance notice via the e-mail address on file for Client’s account of the times the network will be unavailable because of scheduled maintenance. The standard maintenance window is currently 6:00pm to 1:00am each Friday night, such maintenance window period may be revised from time to time by Netology upon notice to Client.

1.3. PCS. Subject to the limitations contained in the Master Managed Services Agreement and this SLA, Netology will provide to Client the server resources required to keep Client’s Business Critical applications available to Client. Servers, storage, and memory can be added, on demand, by written or electronic mail notice to Netology in accordance with the Master Managed Services Agreement to support Client’s requirements. The initial infrastructure build is defined in Client’s Service Order Form and shall comply with the minimum configuration requirements set forth in the Master Managed Services Agreement.

1.4. Credits. In the event Netology fails to meet any of the service criteria listed above, Client will be eligible for a credit. Credits will be calculated as a percentage of the fees for the PCS Servers and/or Centers adversely affected by the failure for the current monthly billing period in which the failure occurred (to be applied at the end of the billing cycle) as follows:

• Network and Data Center Infrastructure: Five percent (5%) of the fees for each 1 Hour of unplanned network or infrastructure downtime up to 100% of the fees.
• PCS Servers/Centers: Five percent (5%) of the fees for each hour of downtime, up to 100% of the fees.

1.5. Definitions:

• “PCS Server/Centers” means Client’s individual unique virtual machine or virtual machine group
• “Cloud server fees” means the fees for Client’s PCS Server and/or Center for the monthly billing period in which the failure occurred and includes monthly virtual machine instance and bandwidth charges.
• “Cloud server host” means the physical server which hosts Client’s cloud server.
• “Network and data center infrastructure” means the portion of the PCS network extending from the network egress point of Client’s cloud server host to the outbound port of the data center border router.
• “Power” includes all UPSs, PDUs, generators, and cabling, but does not include the power supplies in the cloud hosts.

1.6. Limitations. Client is not entitled to a credit if they are in breach of their Master Services Agreement with Netology (including payment obligations to Netology) until Client has cured the breach. Client is not entitled to a credit if downtime would not have occurred but for Client’s breach of their agreement with Netology or Client’s misuse of PCS Server and/or Center system.

To receive a credit, Client must contact their Netology account team within thirty (30) days following the end of the downtime. Client must show that Client’s use of the PCS Server and/or Centers was adversely affected in some way as a result of the downtime to be eligible for the credit.

This Service Level Guaranty is Client’s sole and exclusive remedy for PCS services unavailability.

Notwithstanding anything in this Service Level Guaranty to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of Client’s fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods.

This Service Level Guaranty is part of Client’s Master Services Agreement with Netology along with Netology’s Terms of Service and the AUP, and is subject to the terms and conditions stated in those documents.

2. Microsoft SPLA Software Licenses

Through its strategic alliance with Microsoft, Netology offers the Microsoft Services Provider License Agreement (SPLA) licensing program. This program enables service providers and ISVs with a hosted offering to license Microsoft products on a monthly basis to provide services and hosted applications to their end Clients.

Subscriber user rights for SPLA based licensing included under the scope of this SLA can be found in the most recent Microsoft Services Provider Use Rights (SPUR) document which can be found on Microsoft’s Volume Licensing Site (http://www.microsoftvolumelicensing.com).

As a Microsoft Reseller, Netology will keep track of Client’s license count usage and bill Client accordingly. It will be Client’s responsibility to notify Netology of any license count adjustments after the commencement date of this SLA.

3. Authorized Use Policy

Client agrees that it shall not use any of the Services in a manner that involves, facilitates, or attempts any of the following:

• Violating any law in any applicable jurisdiction.
• Gambling activities.
• Displaying, performing, sending, receiving or storing any content that is obscene or pornographic.
• Advocating or encouraging violence against any government, person or entity.
• Accessing, sending, receiving, displaying, performing, disclosing, storing, or executing any content or procedure that violates any intellectual property right of any person or entity.
• Obtaining unauthorized access to or interfering with any system, network, service, or account or user access thereto.
• Introducing or activating any viruses, worms, harmful code, “Trojan” horses or similar disruptive processes.

4. Disclaimer

THE CLIENT AGREES AND ACKNOWLEDGES THAT NETOLOGY MAKES NO REPRESENTATION OR WARRANTY TO CLIENT, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS SLA, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION, QUALITY, FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF SUCH SERVICES PROVIDED UNDER THIS SLA. NETOLOGY DOES NOT WARRANT OR REPRESENT THAT SUCH SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. THE CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY.

NETOLOGY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO, AND SHALL HAVE NO LIABILITY FOR, ANY EQUIPMENT FAILURE OR DAMAGES INCURRED BY CLIENT FOR ANY SOFTWARE OR HARDWARE PURCHASED FROM OR THROUGH NETOLOGY. CLIENT’S ONLY RECOURSE FOR ANY SUCH FAILURE OR DAMAGES IS THE APPLICABLE MANUFACTURER’S OR VENDOR’S PROVIDED WARRANTY.

5. No Assignment

This SLA is not assignable in whole or in part by Client.