For the purposes of this Service Levels and Support Services the following definitions shall apply:
“Availability” in relation to the Core Services is defined as:
Service Cover Time – Total Unavailability x 100 [%]
Service Cover Time
“Hosting Partner” means The Bunker Secure Hosting Limited and any subsequent firm utilised by the Supplier.
“Core Services” means the hosting and availability of client data collated by the Supplier for the Customer;
“Emergency Maintenance” means the Supplier or its Hosting Partner needs to provide immediate maintenance to equipment that may result in an outage.
“End Time” has the meaning given to it in paragraph 6.2.
“Planned Maintenance” means where the Supplier or its Hosting Partner needs to provide maintenance to equipment that may result in an outage and the Supplier shall, where practicable, use its reasonable endeavours to provide a minimum of seven days’ notice for such maintenance.
“Measurement Period” shall mean a period of one calendar month, save that the first such period after the commencement of the Services (First Measurement Period) shall run until the end of the first full calendar month after commencement of the Services.
“Scheduled Maintenance” shall mean where the Supplier or its Hosting Partner needs to provide maintenance to equipment that may result in an outage on a regular basis. In the case of Scheduled Maintenance, the Supplier shall, where reasonably practicable, provide notice for such maintenance.
“Service Cover Time” shall mean the total number of minutes comprised in the relevant Measurement Period (or First Measurement Period)
“Service Levels” shall have the meaning given to them in paragraph 3 of this SLA.
“SLA” means this Service Level SLA in this Schedule 2.
“Start Time” has the meaning given in paragraph 6.1.
“Total Unavailability” is defined as the total time in minutes between the Start Time and the End Time (rounded up to the nearest whole minute) in the relevant Measurement Period (or First Measurement Period) during which the Core Services were inoperable or unusable as determined in accordance with the unavailability computation calculated pursuant to paragraph 6 of this SLA.
2. Subject to any express provisions of the SLA, the Supplier shall maintain the Service Levels for each of the Core Services as set out in paragraph 3 of this SLA. If, in any one event, more than one of the Core Services fails, the Total Unavailability computation will be based on only the longest duration of any of these Core Services in that said event.
3. Core Services and Service Levels shall mean:
|Measurement Period Service Level
|First Measurement Period Service Level
|Access to MICAP
|Client Reporting Service
4. Exclusions from Service Levels
The Principal Parties agree that, notwithstanding any other provision in this SLA, the Supplier will not be responsible for failure to provide the Core Services or failure to meet the Service Levels to the extent that the failure is due to:
- force majeure;
- any failure by the Customer to comply with any of its duties or obligations set out in this SLA;
- any act or omission of any of the Customer’s Suppliers, agents and suppliers (other than the Supplier);
- Scheduled Maintenance or Planned Maintenance which makes any of the Core Services inoperable, unusable or cause any outages during office hours;
- Emergency Maintenance which makes any of the Core Services inoperable, unusable or cause any outages;
- equipment, connectivity, interruption of power supplies or other utility of service (whether partial or total) and environmental conditions on the Customer’s site;
- unauthorised changes by the Customer;
- the Services fall outside of the Initial Term and any renewal period;
- governmental or regulatory restrictions; exchange rulings, court or tribunal orders or other human intervention;
- any other circumstances or matters other than matters for which the Supplier is responsible pursuant to this SLA.
In the event of the above the Principal Parties acknowledge and agree that the outages caused by these events will not be included in the Total Unavailability computation and the Service Credits will not apply, nor will the Customer be entitled to bring any claims for damages, losses, costs and/or expenses incurred or suffered which arise from any failure to provide the Service.
5. Response and Target Times
- In the event a failure concerning one of the Core Services is detected by the Supplier or reported by the Customer, the Supplier shall use reasonable endeavours to rectify the affected Core Service within the following Target Times:
|Target Times to Resolve
|Failure of Core Service
|PROMPT response from time of event notification
|Within 24 hours of the Supplier’s response.
6. Unavailability Computation
- A Core Service will be deemed unavailable from either:
- the time that the Customer reports the Core Service is below the Service Level; or
- the time that the Supplier discovers that the Core Service is below the Service Level (the “Start Time” as applicable).
- A Core Service will be deemed available again from when the Core Service is either
- above the Service Level, based on the reasonable opinion of the Supplier; or
- where the End Time falls into another Measurement Period the End Time will be deemed to be the last day within the same Measurement Period as the Start Time. (the “End Time” as applicable)
7. Service Credits
- The Supplier shall pay to the Customer Service Credits in accordance with this SLA where the achieved performance levels of certain Services fail to meet certain of the respective Service Levels.
- The Principal Parties agree that:
- Service Credits are a reasonable and genuine pre-estimate of the loss to the Customer for failure to meet the relevant Service Levels for which Service Credits are specified and will be considered by the Principal Parties to constitute liquidated damages; and
- where Service Credits are provided for as a remedy for failure to meet a particular Service Level, the payment of Service Credits by the Supplier to the Customer will constitute the sole and exclusive remedy of the Customer for the failure of the Supplier to provide the Services.
- In any event, the Supplier’s maximum liability for Service Credits under the SLA shall be 100% of the Charges payable in respect of the Services for the relevant Measurement Period in which Service Credits are calculated and applied.
- No Service Credits shall be carried forward from one calendar month to another in circumstances where the amount of Service Credits would but for the provisions of paragraph 3 exceed 100% of the Charges payable in respect of the Services for such period and/or in any other circumstances.
- Subject to paragraphs 3 and 7.4 of this SLA, the Service Credits shall be calculated as follows: For each FULL percentage point (1%) by which the Availability in a Measurement Period is reduced below the target Availability (or First Measurement Period Availability where applicable), a Service Credit shall be due to the Customer equal to 10% of the Service Fees payable by the Customer in respect of the Services for such Measurement Period.
- If the Customer is entitled to any Service Credits, the Customer must write to the Supplier within seven days after the end of any Measurement Period to claim the Service Credits in respect of such Measurement Period.
- Service Credits will not be given where the Customer is in arrears of payment to the Supplier.
- The Customer is not entitled to claim any Service Credits on behalf of any of its clients for any consequential interruption or failure of any third-party services provided by the Customer.
8. Breaches to Service Level
- The following list of circumstances will constitute a material breach and the Customer may, without prejudice to its other rights under the SLA, have the right to terminate the SLA immediately in whole or in part by giving the Supplier notice in writing:
- if the Availability falls below 70% in the First Measurement Period after the date of commencement of the Services; or
- if the Availability falls below 90% during any Measurement Period after the date of commencement of the Services; or
- if the Availability falls below an average of 93% in any three consecutive Measurement Periods.