Master Service Agreement

Service Level Guarantee

Network Uptime Guarantee. Xaccel Network guarantees that its network will be available 99.99% of the time in a given month, excluding scheduled maintenance. Network uptime includes functioning of all network infrastructure including routers, switches, and cabling, but does not include services or software running on the server. Network downtime exists when a particular customer is unable to transmit and receive data, and is measured from the time a case number is opened.

Upon experiencing downtime, Xaccel Network will credit the Customer 3% of the monthly fee for each hour of downtime (up to 100% of Customer’s monthly fee for the affected virtual server).
Infrastructure Uptime Guarantee. Xaccel Network guarantees that the critical infrastructure systems will be available 99.99% of the time in a given month, excluding scheduled maintenance. Critical infrastructure includes functioning of all power and HVAC infrastructure including UPSs, PDUs, and cabling.

Infrastructure downtime exists when a particular server is shut down due to power or heat problems, and is measured from the time the case number is opened to the time the problem is resolved and the server is powered back on.
Upon experiencing downtime, Xaccel Network will credit the Customer 3% of the monthly fee for every hour of downtime (up to 100% of Customer’s monthly fee for the affected virtual server).

Hardware. Xaccel Network guarantees that all hardware components will be available 99.99% of the time and will replace any failed component at no cost to the Customer. Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card, and other related hardware the virtual server resides on. This guarantee excludes the reloading of applications.

Hardware replacement will begin once Xaccel Network isolates the cause of the problem. Hardware replacement is guaranteed to be complete within six hours of problem identification. Upon experiencing downtime, Xaccel Network will credit the Customer 3% of the monthly fee for every hour of downtime (up to 100% of Customer’s monthly fee for the affected virtual server).

Standby VMs/Disaster Recovery Terms:

Xaccel Network provides hosting for Virtual Machines (VMs) in Standby mode, meaning that Xaccel Network stores the images of VMs that the Customer is replicating or storing on Xaccel Networks VMware Cloud Infrastructure to be activated in the event of a Disaster. Xaccel Network reserves the space for Customer and guarantees resource availability at the time Customer declares the disaster.

Declaration of Disaster . Customer must declare a disaster situation with Xaccel Network in order for Xaccel Network to activate the Standby VMs. Xaccel Network guarantees that from the time a disaster is declared and confirmed by an Xaccel Network engineer that the full resources Customer is reserving will be made available within 24 hours. Customer must be reasonably accessible to confirm the availability of resources?

Customer agrees to pay minimum full month of service at 3 x Xaccel Networks Standby VM pricing whenever customer declares a disaster and changes from Standby VM to Production VM. Customer can then use the service for as long as they want but will be billed accordingly.

Xaccel Network cannot guarantee the integrity of any data that the Customer replicates to Xaccel Networks infrastructure. Customer is solely responsible for the quality and integrity of the data, and for testing the Standby environment.
Customer agrees to pay Xaccel Networks current x-Tech rates for any additional configuration or support that may be required to get Customer’s computer network functional, including VM, IP, and network reconfigurations.

Testing. Customer is entitled to one free test of the infrastructure every year. Tests must be scheduled one month in advance with Xaccel Networks Technical Support Team. Free testing consists of Xaccel Network activating the resources for the Customer for a period of one week from the scheduled date of testing. Customer may incur other fees during testing such as IP Bandwidth usage fees and out-of-scope reconfiguration fees.

General Terms of Service:

The term commitment for all virtual servers is a minimum of twelve (12) months unless otherwise specified in the signed contract. After the initial term of the contract, Customer’s contract will go month-to-month. All month-to-month customers are subject to price increases not to exceed our then current price list for services rendered at the expiration of your term commitment. Billing for services begins once the virtual server is configured and an Xaccel Network technician determines installation is complete.

Installation covers the following:
•  Installation of Operating System
•  Assignment of IP addresses
•  Assignment of administrator account to the Customer
•  Verifying the virtual server is accessible via the internet

Any further items or actions by Xaccel Network are considered billable unless part of another Xaccel Network service as outlined in your quote and/or other terms of use and liability agreement for Xaccel Networks Managed Services.

Additional services are billed according to Xaccel Networks standard pricing list (x-Tech rates). For any billable time here is a minimum 1 hour charge.

All hardware is delivered virus free. If after receiving notification that hardware installation is complete the Customer server gets infected, hacked, or is compromised in any way, and if it is determined by an Xaccel Network engineer that there is a potential threat to the Xaccel Network network or other Xaccel Network customer, Xaccel Network, at its sole discretion, can disable the Customer’s virtual server until the Customer can take the appropriate actions to resolve the issue or contact Xaccel Network to resolve the issue. All work performed by Xaccel Network for this situation is billable.
Xaccel Network will attempt to contact the Customer via phone or email prior to disabling the virtual server from the Xaccel Network server farm.

Xaccel Network provides a fully-redundant virtual server farm environment for the Customer. However, Customer agrees that Xaccel Network assumes NO liability for any loss of data, business, or assumes no financial responsibility for such loss as a result of a failure in any of Xaccel Networks infrastructure, hardware, or network. Xaccel Network shall be excluded from any civil or legal implications concerning the delivery and working condition of the aforementioned virtual server environment, computer hardware or software, except to the extent caused by Xaccel Networks negligence or willful misconduct.?

Xaccel Network may provide trouble-shooting or Managed Services on Customer’s virtual environment that do not have a managed service contract from time-to-time as mutually agreed upon by both parties. Xaccel Network warrants that all of its services shall be of professional quality conforming to applicable industry standards EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT. XACCEL NETWORK MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR USE.
 

Billing:

Commencement of Billing. Upon installation and testing of the service ordered in any Customer Order, Xaccel Network will deliver to Customer a Connection Notice. Upon receipt of the Connection Notice, Customer shall have a period of twenty-four (24) hours to confirm that the service has been installed and is properly functioning as ordered. Unless Customer delivers written notice to Xaccel Network within such twenty-four (24) hour period that the service is not installed in accordance with the Customer Order and functioning properly, billing shall commence on the applicable service commencement date, regardless of whether Customer is otherwise prepared to accept delivery of ordered service. In the event that Customer notifies Xaccel Network within the time period stated above that the service is not installed and functioning properly, then Xaccel Network shall correct any deficiencies in the service and deliver a new Connection Notice to Customer, after which the process stated herein shall be repeated.

Charges. The Customer Order will set forth the applicable non-recurring charges and recurring charges for the service. Unless otherwise expressly specified in the Customer Order, Xaccel Network shall invoice all nonrecurring fees and security deposits. A prorated invoice will be provided once service has been installed and monthly recurring billing will commence.

Billing and Payment Terms. Invoices are delivered monthly, unless otherwise specified on the contract or invoice. Xaccel Network bills in advance for service to be provided during the upcoming month(s), except for charges that are dependent upon usage of service, such as IP or x-Tech Services, which are billed in arrears. Billing for partial months is prorated based on a calendar month. All invoices are due fifteen (15) days after the date of invoice. Unless otherwise specified on the particular invoice, all payments shall be due and payable in U.S. Dollars or the currency of the country service is being provided in. Set up fees (NRC) and one (1) month security deposit equal to the monthly recurring charge (MRC) is due prior to orders being placed. Past due amounts will incur late fees of 1% per month beginning from the date first due until paid in full.

Payment history is reviewed periodically. Partial or full service disruption may occur with five days prior written notice if Customer is (i) late making payments on any Customer balance; (ii) Customer check bounces, (iii) Customer unreasonably disputes a credit card charge with a credit card entity without disputing the charge with Xaccel Network first, and Customer has not corrected the delinquency.

Taxes and Fees. All charges for service are exclusive of Applicable Taxes (as defined below). Customer will be responsible for all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges, however designated, imposed on, incident to, or based upon the provision, sale or use of the service (collectively “Applicable Taxes”).

If Customer is entitled to an exemption from any Applicable Taxes for a particular service, Customer is responsible for presenting Xaccel Network with a valid exemption certificate (in a form reasonably acceptable to Xaccel Network). Xaccel Network will give effect to any such exemption certificate on a prospective basis from and after Xaccel Networks receipt of such exemption certificate.?

Disputed Invoices. If Customer reasonably disputes any portion of an Xaccel Network invoice, Customer must pay the undisputed portion of the invoice and submit written notice of the claim with sufficient detail of the nature of the claim, the amount, invoices in dispute, and information necessary to identify the affected service(s) for the disputed amount. All claims must be submitted to Xaccel Network in writing using our billing dispute form within thirty (30) days from the date of the invoice for those services. Customer waives the right to dispute any charges not disputed within such thirty (30) day period. In the event that the dispute is resolved against Customer, Customer shall pay such amounts plus any late fees associated with the disputed amount.

Bandwidth Billing (IP). Customers are responsible for ALL bandwidth charges associated with their hardware. All bandwidth is billed based on the 95th percentile method.

The 95th percentile method is defined as follows: Both incoming and outgoing bandwidth is measured (or sampled) from the switch or router and recorded in a log file. This is done every 5 minutes. At the end of the month, the higher of the two samples (in or out) are sorted from highest to lowest, and the top 5% (which equal to approximately 36 hours of a 30-day billing cycle) of data is discarded. The next highest measurement becomes the ‘billable utilization’ for the month. Based on this model, the top 36 hours (top 5% of 720 hours) of peak traffic is not taken into account when billed for an entire month. Bandwidth could be utilized at a higher rate for up to 65 minutes a day with no financial penalty.

If hackers, viruses, etc. have compromised hardware, all associated bandwidth charges are still the responsibility of the Customer. Failure to pay for bandwidth overage charges can result in the suspension of client services.

Xaccel Network does not necessarily consider excessive bandwidth usage to be a threat to its network or to other Xaccel Network customers and it would be at the sole discretion of Xaccel Network whether to turn off Customer port in the event of excessive bandwidth usage or unless specifically requested by Customer.

Service Cancelation. Cancelation of services requires 30-day advanced written notice. If notice is received prior to the end of the term commitment, Customer will be required to pay 100% of the contracted/standard monthly fee for all services for each month remaining in the term commitment.

Acceptable Use Policy (AUP). Customer’s use of service shall at all times comply with Xaccel Networks then-current Acceptable Use Policy (AUP) as amended by Xaccel Network and communicated in writing to Customer from time to- time, and which is also available through Customer’s sales or support representative. Xaccel Network will notify Customer of complaints received by Xaccel Network regarding each incident of alleged violation of Xaccel Networks Acceptable Use Policy (AUP) by Customer or third parties that have gained access to the service through Customer. Customer agrees that it will promptly investigate all such complaints and take all necessary actions to remedy any actual violations of Xaccel Networks Acceptable Use Policy (AUP). Xaccel Network may identify to the complainant that Customer, or a third party that gained access to the service through Customer, is investigating the complaint and may provide the complainant with the necessary information to contact Customer directly to resolve the complaint. Customer shall identify a representative for the purposes of receiving such communications
Force Majeure. Neither party shall be liable for any failure or delay in its performance under this agreement to the extent such failure or delay, whether foreseen or unforeseen, was caused by any circumstances or event beyond the reasonable control of such party, including, without limitation, an act of God, severe weather event, terrorist act or military action, actions or decrees of governmental authorities, criminal act of third parties. In the event Xaccel Network is unable to deliver service as a result of a force majeure event, Customer shall not be obligated to pay Xaccel Network for the affected service for so long as Xaccel Network is unable to deliver the affected service.?

Notices, Warranties and Exclusions:

Notices. Notices hereunder shall be in writing and may be delivered in person, by facsimile (confirmed by transmission report), overnight courier, electronic mail (if an e-mail address is provided below), or by first class post, addressed as follows:

IF TO XACCEL NETWORKS:
For billing inquiries/disputes, requests for Service Level credits and/or requests for disconnection of service (for other than default):
Xaccel Network LLC
380 US Highway 46 Suite 500
Totowa, NJ 07512
Attn: Billing Credits Dept
E-mail: billing@xaccel.net.