Service Level Agreement

This Service Level Agreement (SLA) is incorporated into and made a part of the Service Agreement and Master Services Agreement (MSA) between Customer and Convergence Solutions, Inc. Capitalized terms used herein that are not defined in this SLA shall have the meaning attributed to them in the MSA.

Services: The Service Level Agreement (SLA) is effective on the activation date of services when billing begins. The goals associated with service Availability, SLA’s set forth below are measured using monthly averages of the Convergence Solutions, Inc. Network.

Availability: The Service Availability Goal for Convergence Solutions, Inc. Service is 99.9%. Service availability is based on “Convergence Solutions, Inc. Downtime”, which exists when Convergence Solutions, Inc. applications or servers are unable to transmit and provide services. In the event Convergence Solutions, Inc. Networks does not meet this service availability Service Level, subject to the restrictions and exclusions in Section 3 below, Customer’s exclusive remedy shall be to receive a service credit off of the MRC (monthly recurring charge) associated with the affected Service based on the SLA stated here

Components Included. Products and services provided directly by Convergence Solutions, Inc. This SLA does not cover customer provided equipment (CPE) customer premises equipment, and any other carrier networks and or equipment not provided and controlled by Convergence Solutions, Inc. IN NO EVENT WILL CONVERGENCE SOLUTIONS, INC. PROVIDE SERVICE CREDITS FOR SERVICES NOT PROVIDED BY CONVERGENCE SOLUTIONS, INC. Convergence Solutions, Inc. does not provide service credits for outages caused by Internet Outages unless Convergence Solutions, Inc. is the billing provider of the Internet service. Internet outages caused by other Internet providers may render Convergence Solutions, Inc. Voice and Video services inoperable and it is the customer’s sole responsibility to work with their providers to repair, upgrade or replace any internet service that is deemed unacceptable by Convergence Solutions, Inc. due to excess latency, consistency and reliability as stated in the MSA. Service credits will not be provided for other carriers outages.

Maintenance: “Normal Maintenance” refers to upgrades of hardware or software or upgrades to increase capacity. Normal Maintenance may temporarily degrade the quality of the Service, including possible outages. Such effects related to Normal Maintenance will not give rise to service credits under this SLA. Normal Maintenance will be undertaken only as follows: (a) between the hours of 11 PM and 6:00 AM Mountain Time. “Urgent Maintenance” refers to efforts to correct network conditions that are likely to cause a material Service outage and that require immediate action. Urgent Maintenance may degrade that quality of the Services, including possible outages. Such effects related to Urgent Maintenance will entitle Customer to service credits as set forth in this SLA.

Limitations: Notwithstanding anything in this Service Schedule to the contrary, Customer will not be entitled to a service credit for an outage that is the direct result of any network failure associated with the local loop, the internet, or any other facilities that are not owned, operated or controlled or billed by Convergence Solutions, Inc.

Customer Termination Rights: Customer may terminate the Affected Services without early termination charges if, in any single calendar month: (a) Network Downtime exists for 24 hours in the aggregate; or (b) any single event entitling Customer to credits under Network Availability exists for a period of at least 24 consecutive hours. Such termination must be conducted by written notice to Convergence Solutions, Inc., and no later than five business days following the end of the relevant calendar month; otherwise, Customer waives its rights to termination based on subsection (a) or (b) herein. After receipt of written notice of termination such termination will be effective after services have been transferred to another service provider.

Exclusive Remedy: Given that damages from service interruptions or other failures to provide the Service under this SLA would be impossible to ascertain, and that the remedies stated in this SLA have been determined as a reasonable estimate of compensation, and not as a penalty, Customer’s remedy shall be fixed and liquidated as set forth in this SLA. In no event will the total remedies available to Customer exceed those set forth in this SLA. The provisions of this SLA state Customer’s sole and exclusive remedies for Service interruptions or Service deficiencies of any kind whatsoever.

Remedies: Each Service outage is treated as a discrete event; therefore, the credits specified in the SLA shall be given for each separate Service outage. The number of minutes of separate Service outages will be cumulated to determine the percentage of credit. In order to request SLA credits, Customer must contact Convergence Solutions, Inc. Customer Service. In order to receive service credits set forth herein, such requests shall be made no later than five business days following the last day of the month in which the relevant SLA was not met. Failure to comply with these service credit request requirements will forfeit your right to receive a credit. A credit will be applied only to the month in which the event giving rise to the credit occurred. The maximum SLA credits issued in any one calendar month will not exceed: 25% of the MRCs of the Affected Service with respect to the SLA. “Affected Service” refers to the particular Product that fails to meet the relevant SLA. In no event will the total credit, in the aggregate for all credits issued in one month exceed the equivalent of 25% of the relevant MRCs for the Affected Service.

Service Credit Exceptions: An outage shall not be deemed to have occurred in the event that the service is unavailable or impaired due to any of the following:

• Interruption on a service for which the Start of Service Date has not yet commenced;
• Interruptions caused by the negligence, error or omission of Customer or others authorized by Customer to access, use or modify the Service or equipment used by Customer;
• Interruptions due to power failure at customer premises, or the failure or poor performance of CPE;
• Interruptions during any period in which Convergence Solutions, Inc. or its agents are not afforded access to the premises where the access lines associated with the Service are terminated, provided such access is reasonably necessary to prevent a degradation or to restore Service;
• Interruptions during any period that Convergence Solutions, Inc. has communicated to Customer in any manner that the Service will be unavailable for Normal Maintenance or grooming purposes, or Customer has released the Service to Convergence Solutions, Inc. for the installation of a customer Service Order;
• Interruptions during any period that Customer elects not to release the Service for testing and/or repair and continues to use it on an impaired basis;
• Interruptions resulting from Force Majeure;
• Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner;
• Interruptions resulting from a Convergence Solutions, Inc. disconnect for Cause;
• Interruptions resulting from incorrect, incomplete or inaccurate Service orders from Customer (Including without limitation Customer’s over subscription of Circuits);
• Interruptions due to improper or inaccurate network specifications provide by customer;
• Interruptions resulting from a failure of a carrier other than Convergence Solutions, Inc. providing Local Access Services including CPE;
• Convergence Solutions, Inc. inability to deliver Service by the Customer Commit Due;
• Interruptions caused by circumstances beyond the reasonable control of Convergence Solutions, Inc. or its agents.