Service Level Agreement

This Service Level Agreement (“SLA”) applies to customers of DataVerge IP transit services, dedicated server hosting services, and co-located server hosting services only. It does not apply to customers of DataVerge virtual hosting services or DataVerge branded connectivity services (e.g., DSL).

This SLA provides Customer with certain rights and remedies regarding the performance of the DataVerge Network. The “DataVerge Network” means the DataVerge owned and operated Internet Protocol (IP) routing infrastructure through which DataVerge provides Internet connectivity and IP routing and transit to its customers. This Service Level Agreement applies only to Network Outages (as defined herein) on the DataVerge Network.

Availability Guarantee

DataVerge guarantees that the critical infrastructure systems, including power and HVAC, will be available 100% of the time in a given month, excluding scheduled maintenance. Upon experiencing downtime, DataVerge will refund the customer 3% of the monthly fee for each 60 minutes of downtime (up to 100% of customer’s monthly fee). Critical infrastructure includes functioning of all power and HVAC infrastructure including UPSs, PDUs and cabling, but does not include the power supplies on customers’ servers. Infrastructure downtime exists when a particular server is shut down due to power or heat problems and DataVerge records such failure in the DataVerge trouble ticket system. Infrastructure downtime is measured from the time the customer opens a trouble ticket regarding server downtime to the time the problem is resolved and the server is powered back on.

Exceptions

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

  1. failure of power, facilities, equipment, applications, systems or connections not provided by DataVerge;
  2. failure of access circuits to the DataVerge Network, unless such failure is caused solely by DataVerge;
  3. General Telco failure;
  4. scheduled maintenance;
  5. DNS issues outside the direct control of DataVerge;
  6. outage or error of any DataVerge measurement system;
  7. Customer’s acts or omissions, including without limitation, any negligence, willful misconduct, or use of the DataVerge Network or DataVerge services in breach of DataVerge Terms and Conditions and Acceptable Use Policy, by Customer or others authorized by Customer;
  8. any reason beyond the control of DataVerge, including, without limitation, acts of God or any governmental body, war, sabotage, fire, flood, earthquake or labor disturbance.

Measurement

DataVerge will periodically (on average every 15 minutes) measure our Network at the edge router using software and hardware components capable of measuring application traffic and responses at such measurement. Customer acknowledges that such measurements constitute measurements of traffic on the DataVerge Network but not other networks to which Customer may connect. DataVerge reserves the right to periodically change the measurement points and methodologies it uses without notice to Customer. Measurements will be posted to a website designated by DataVerge and made available to Customer.

Credit Request and Payment Procedures

Requests for credits must be made on the website designated by DataVerge. Each request in connection with a Network Outage must be received by DataVerge within seven days of the Network Outage.

Not with standing anything in this SLA to the contrary, the total amount credited to a Customer in connection with network outages, in any calendar month will not exceed the base service fee paid by customer to DataVerge for such month.

Each validly requested credit will be applied to a Customer invoice within 2 billing cycles after DataVerge receipt of such request. Credits are exclusive of any applicable taxes charged to Customer or collected by DataVerge.

General

DataVerge reserves the right to change or modify this SLA at any time without notice. Except as set forth in this SLA, DataVerge makes no claims regarding the availability or performance of the DataVerge Network.

Acceptable and Restricted Use of Services

All services provided by DataVerge shall be used by the Customer for lawful purposes and in compliance with all applicable laws. Since DataVerge is not a content provider and does not monitor the content being transmitted, posted or stored by the Customer, it’s the Customer’s responsibility to determine what laws or regulations are applicable to its use of the Services and Products provided. Customer is strictly prohibited from storing, posting, transmitting, re-transmitting or distributing material on or through any of the Services or Products which in the sole discretion of DataVerge (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) threatening, obscene, indecent, defamatory or that other-wise could adversely affect any individual, group or entity (collectively, “Persons”) (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products that are not appropriately licensed for use by Customer (iv) that is a direct or indirect threatens physical harm, (v) that displays child pornography, (vi) information that is determined to be harassing in nature, (vi) material and programs that contain viruses or Trojans or tools to compromise the security of others, (vii) deceptive on-line marketing practices, or (viii) actions that restrict or inhibit any persons, whether a Customer of DataVerge or otherwise, in its use or enjoyment of DataVerge Services or Products.

Each customer/server is provided with a burstable 100Mbps port, and may utilize available network bandwidth in manner that is fair and reasonable to all users on the DataVerge network. Because bandwidth is a shared resource amongst all users, excessive consumption of network bandwidth by a customer/server can interfere with or completely prevent normal network performance for other users. DataVerge provides temporary burst (not sustained usage) up to 100Mbps for each server as a courtesy only. Servers that (a) average 10Mbps (106GB of data transfer) or more during any 24-hour period or (b) average 20Mbps (53.3GB of data transfer) or more during any 6-hour period or (c) average 30Mbps (40GB of data transfer) or more during any 3-hour period shall be warned and/or disconnected from the network to prevent such activities from causing deterioration in network performance for other users. Furthermore, the customer shall be responsible for (a) all fees related to excessive bandwidth usage and (b) all fees related to the violation of the DataVerge Terms of Service Agreement.

Network and Systems Security

Customer shall not utilize any of DataVerge Services to compromise the security or tamper with DataVerge system, network or accounts on any of DataVerge computers, routers, terminal servers, or other equipment that is located at DataVerge site. Customer shall be specifically prohibited, without limitation, of the following:

  1. Introduction of malicious programs into the network;
  2. Effecting security breaches or disruptions of Internet communication. security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorized to access. For purposes of this section “disruption” includes, but is not limited to, port scans, flood pings, packet spoofing and forged routing information.
  3. Executing any form of network monitoring which will intercept data not intended for the Customer’s server
  4. Circumventing user authentication or security of any host, network or account
  5. Interfering with or denying service to any user other than the Customer’s host (for example, denial of service attack).
  6. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable, a user’s terminal session, via any means, locally or via the Internet
  7. Creating an “active” full time connection on a Company-provided dial-up account for Internet access by using artificial means involving software, programming or any other method
  8. Utilizing a Company-provided dial-up account for purposes for Internet access other than facilitating connectivity to the Services and Products provided by the Company. This includes copying or creating files utilizing more than 5MB of disk space on the dial-up account servers.
  9. Failing to comply with the Company’s procedure relating to the activities of customers on the Company’s premises.

Penalties

Any and all restrictive activities are subject to immediate termination of Customer’s account. Customer may also be subject to any and all criminal and civil penalties available under the law. Accounts that have been terminated as a result of abuse or violation of the Acceptable Use Policy shall not be re-opened and Customer shall not be reimbursed for any fees that may have been paid whose services had been suspended or terminated for reasons stated herein.

Indemnification

Customers agree to indemnify, waive and hold DataVerge, its officers, directors, shareholders, employees, agents, subsidiaries and affiliates harmless from any and all claims and expenses related to the Customer’s violation of this AUP, including any abusive or unlawful behavior on the part of the Customer or anyone using the Customer’s account or the infringement of any intellectual property or privacy rights of any person or entity. This shall mean that Customers can not sue or recover damages whatsoever from DataVerge as a result of DataVerge decision to remove material from its servers, warn you, suspend or terminate Customer’s account or take any other action during the investigation of a suspended violation or as a result of DataVerge conclusion that violation has occurred.

Restricted Use of Mail

The following mail practices are strictly prohibited:

  1. Sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of the Customer or with whom the Customer does not have an existing business relationship (“E-mail spam”).
  2. Harassment, whether through language, frequency or size of messages.
  3. Unauthorized use, or forging, of mail header information.
  4. Solicitations of mail for any other E-mail address other than that of the poster’s account or service with the intent to harass or to collect replies.
  5. Creating or forwarding “chain letters” or other “pyramid schemes” of any type.
  6. Use of unsolicited E-mail originating from within DataVerge network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by DataVerge, or connected via DataVerge network.

Billing Procedures

Customers are responsible to make timely payments. Customers must furnish accurate and correct personal or corporate billing information. It is Customer’s responsibility to make sure that their accounts are kept up to date and current. Customers who choose to make payment with credit cards must provide their full name, billing address, credit card number and expiration date.

It is the Customer’s responsibility to timely notify the billing department of any changes in its credit card account. Payment for all Services and Products by fraudulent means, including without limitation, false names, unauthorized use of credit cards, false date will result in immediate and permanent termination of the account and possible criminal penalties. Customers will be charged an additional fee for any returned checks, or unprocessed credit card charges. Failure by Customer to make timely payments may result in DataVerge canceling any Customer account without notice due to non-payment. In the event that Accountholder fails to timely make full payment of each invoice, DataVerge reserves the right to charge interest, late fees and/or reactivation charges on the delinquent accountholder’s account.

In the event of cancellation by customer must contact DataVerge billing department. NON-USAGE OF AN ACCOUNT OR NON-PAYMENT IS NOT PROOF OF CANCELLATION OF SERVICE.

All cancellations require a 30 Day Notice. DataVerge reserves the right to seek the collection of payments owed by all means available to it by law. Accountholders are responsible for full payment on all accounts whether or not the account is ever utilized. All original unopened software must be returned to DataVerge in order for Accountholder to be entitled to any refund. In the event that Accountholder fails to return the original unopened software to DataVerge Accountholder will be billed for a minimum of one month’s service. Any billing discrepancies shall be presented to DataVerge in reasonable detail, in writing, within twenty (20) days of the date of the charge. Such notification shall not relieve Customer of the obligation to make all payments including the amounts disputed by the due date. DataVerge shall not be obligated to consider any Customer notice of billing discrepancies which are received by DataVerge more than twenty (20) days following the date of the invoice in question.

If a Customer fails to dispute any charge after twenty (20) days from the date of the charge, Customer waives its rights to thereafter make any such dispute and all such charges will be deemed valid. DataVerge makes no warranties as to the availability or right to use of any login name, E-mail address, or domain names. Payments by check does not guarantee that the domain names are available and/or confirmed at time of sign-up. DataVerge will not refund any charges for reprinting of stationary or any other losses incurred. DataVerge MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF BILLING, OR THE QUALITY OF SERVICES PROVIDED OR TO THE WARRANTY OF MERCHANTABILITY OR TO FITNESS FOR A PARTICULAR PURPOSE.

Customer agrees that at the end of the term of the account initially agreed to by Customer or any term thereafter, DataVerge may, at its sole discretion, automatically renew such Internet account for an additional term. Customer further agrees that upon renewal of such an account, DataVerge may continue to charge Customer’s credit card or seek other form of payment from Customer, for which Customer shall be responsible for. In the event that Customer does not wish DataVerge to automatically renew such Internet account, it is Customer’s sole responsibility to notify DataVerge of such intent prior to the expiration of such term. DataVerge may also, from time to time, provide Customers updates or changes to the Customer’s account information, as it may be deemed necessary.

Disclaimers

DataVerge to the fullest extent permitted by law, disclaims all warranties, including warranty of merchantability, fitness for a particular purpose and non-infringement of third party rights. DataVerge makes no warranties about the accuracy, reliability, completeness, or timeliness of the material, services, graphics, and/or links. Neither DataVerge or its directors, employees, licensors, content providers, affiliates or other representatives will be liable for any damages whatsoever, including without limitation any direct, indirect, incidental, consequential, special and exemplary damages, arising from the use or performance of this web site or from any information, services or products represented or provided through this web site, even if DataVerge has been advised of these damages. This document and all other documents and information that are or may be published from time to time on this web site could include technical inaccuracies or typographical errors. Changes are made periodically to the information contained herein. DataVerge may make improvements and/or changes in the documents, services, products and or the programs described herein at any time.

Intellectual Property Rights

Customer acknowledges and agrees that any and all copyrights, trademarks, service marks, patents, trade secrets and other proprietary rights and laws protect all content and materials made available on the DataVerge web site. Nothing contained on the DataVerge web site shall be interpreted or implied in such a way as conferring any license or right to any intellectual property rights or license to any intellectual property, content, technology, system, process or related material belonging to DataVerge by virtue of being displayed or made accessible on any DataVerge web site. Except as expressly authorized by DataVerge, Customer agrees not to use this site or the Services in any manner that would infringe, violate, dilute or misappropriate any such rights with respect to any material which Customer accesses through this web site or the use of Services.

The DataVerge name, DataVerge logo, other related names, designs marks, product names or related logos are trademarks of DataVerge and may only be use with express written permission of DataVerge. DataVerge claims copyright right interests in all original content or works provided by DataVerge on its web site. If any pages, information or content is copied it may only be copied for non-commercial uses and DataVerge shall in any event retain all copyright and other proprietary interests therein. If Customer shall use a domain name in connection with the DataVerge Services, Customer shall not use that domain name in violation of any trademark, service mark or similar rights of any third party.

All policies stated herein are subject to change at DataVerge sole discretion. Customer shall be responsible for adhering to any new policies implemented by DataVerge. DataVerge reserves the right to notify Customer, from time to time, or otherwise post the changes, modifications.