Clearwire Service Level Agreement
This SERVICE LEVEL AGREEMENT (this "SLA") is agreed and entered into between Clear Wireless LLC or Clearwire U.S. LLC, as may be applicable (in either event, together with their affiliated entities, "Clearwire") and Clearwire's Managed Services Customer ("Customer"), effective as of (i) the date of the applicable Managed Services Agreement by and between Clearwire and Customer or (ii) the date of Customer's first use of the Clearwire Services (in either event, the "MSA"), into which binding Agreement this SLA is and shall be incorporated and made an enforceable part. This SLA sets forth, in complete form and substance, Clearwire's sole SLA with, for, and on behalf of Customer during the term of Clearwire's provision, and customer use, of the subject Clearwire Services. Clearwire and Customer (the "Parties"), intending to be legally bound, hereby further agree as follows:
1. GENERAL. Clearwire is committed to providing reliable, responsive and personalized service to its valued customers. To ensure our business priorities are aligned with our business and government customers' need for reliable service, Clearwire provides this SLA to customers activated on Clearwire (and/or Clearwire's CLEARTM-branded) Professional class Services. Professional class Services consist of specific services and features as described on the Clearwire web site and other Clearwire-provided documentation. This SLA sets forth, contains and represents the complete and sole responsibility and liability of Clearwire, and Customer's sole remedy and recourse, with respect to any and all Clearwire Professional class Services and Clearwire performance of same.
2. DEFINITIONS. For purposes of this SLA:
"Customer" means a Clearwire customer who has purchased a Clearwire Professional class Service under a one or two-year agreement and is in Good Standing. Customer's purchase of Clearwire Professional class Services on a no-contract or month-to-month or day pass agreements shall not be eligible for credits and other privileges under this Service Level Agreement.
"Good Standing" means that the Customer is current in its payment of all issued Clearwire invoices and is in full compliance with Clearwire's designated terms of service and acceptable use policies.
"Professional class Services" means specific services provided by Clearwire that are designated as "Professional" class in Clearwire documentation, web site materials, and other approved literature. Professional class Services do not apply to services sold by Clearwire that are provided by third parties, including without limitation, the 3G EVDO wireless data services that are provided by Sprint Communications Company L.P.
"Trouble Ticket" means a phone notification from the Customer to a Clearwire designed phone number used for such notifications. A Trouble Ticket shall not be considered valid unless all information necessary for Clearwire to perform needed Testing or restoration is provided by Customer. Further, a Trouble Ticket shall not be considered valid if Clearwire is denied access to Customer's facilities and equipment to perform Tests requested by Clearwire at its sole discretion.
"Testing" or "Tests" means testing or tests conducted by Clearwire's authorized personnel on Customer's Professional class Services. All Testing shall be conducted between the Clearwire equipment associated with the Customer's Professional class Services and a point or points designated by Clearwire within the Clearwire network. Testing or Tests must be done in a period where the only traffic on the Professional class Services is the Test traffic.
"Speed Objectives" means the uplink and downlink speeds designated as speed objectives for each Professional class Service as documented on the Clearwire web site and other Clearwire documentation.
"Scheduled Maintenance" means and refers to normal maintenance scheduled for the upgrade or maintenance of Clearwire's network(s) and/or related systems. Scheduled Maintenance may temporarily degrade the quality of service including possible outages. Such effects related to Scheduled Maintenance shall not give rise to service credits or other Customer remedies outlined in this SLA.
"Urgent Maintenance" means and refers to Clearwire's efforts to correct Clearwire network or related systems conditions that are likely to cause service outages or severe network performance degradation impacting multiple customers and requires immediate action. Urgent Maintenance may degrade the quality of service including possible outages. Urgent Maintenance or any such effects related to Urgent Maintenance shall not give rise to service credits or any other Customer remedies that may be outlined in this SLA.
3. SERVICE; AVAILABILITY.
a. The availability targets referenced below do not account for Scheduled Maintenance or Urgent Maintenance on the Clearwire network or events outside of Clearwire's control, including, but not limited to, force majeure events or activities, operation, configuration or applications associated with Customer's equipment. The service guarantees described below shall only apply to Professional class Services.
b. A Professional class Service is deemed to be experiencing an outage or is considered unavailable if, through no fault of Customer, Customer is unable to exchange data traffic across the Clearwire network, or Clearwire is unable to ping the Clearwire equipment associated with the specific instance of Customer's Professional class Service for a period of at least one (1) continuous hour in any calendar month during the Term of Service. The period of outage or unavailability will be validated by Clearwire Testing and based on the creation time of a valid Trouble Ticket.
c. Outage hours are rounded to the nearest hour and based on the time a valid Trouble Ticket is created.
d. Credits, rights to terminate, and other applicable remedies under this SLA shall apply only to the affected individual service instances of Clearwire Professional class Services.
e. Credits under this SLA shall be calculated on the basis of the actual monthly recurring charge(s) associated with the individual affected service instance(s) of Professional class Services and does not include monthly recurring charges related to features, equipment lease fees and taxes.
f. In no case shall the sum of credits associated with all SLA terms during a calendar month exceed the total of Customer's monthly recurring charge for the individual instance of Clearwire service impacted.
g. This SLA expressly excludes and shall not cover (and Clearwire shall not be responsible or liable for) any excusable impacts arising from or related to availability, outages, speed performance or latency affected by: (i) Clearwire's network or related systems maintenance; (ii) acts or omissions, or negligence, of or by Customer or any of its employees, contractors or agents; (iii) behavior, failure or interruption of Customer's equipment, facilities or applications; (iv) widespread or systemic internet, World Wide Web, or other telecommunications network or utility grid failure or interruption; or (v) acts of God, war, civil disorder, natural cataclysm, terrorism, radio frequency interference or blockages, or other occurrences beyond the reasonable control of Clearwire.
4. SERVICE GUARANTEES.
a. THIRTY DAY SATISFACTION GUARANTEE:
If Customer is for any reason dissatisfied with any Clearwire provided Professional class Service, Customer may, during the Thirty Day Service Guarantee period, terminate the Professional class Services without liability for further term commitments. In the event that Customer terminates the Professional class Services as allowed herein, Customer will remain responsible for all applicable service fees and charges. The Thirty Day Service Guarantee period shall start upon activation of the Clearwire equipment and enablement of the Customer's account for use, and end thirty (30) days thereafter regardless of when the customer begins usage of Clearwire service.
b. CHRONIC OUTAGE TERM WAIVER:
In the event that during any thirty (30) calendar day period of service, Customer is eligible for credit for four (4) or more individual instances for issues under this Service Level Agreement for the Professional class Services, such being defined as a Chronic Outage ("Chronic Outage"), customer may terminate the individual service instances of affected Professional class Services without liability for further term commitments. In the event that Customer terminates Professional class Services as allowed by this paragraph, Customer will remain responsible for any and all applicable invoices, fees and charges. Clearwire must receive written notice of Customer's intent to terminate Professional class Services as permitted herein within thirty six (36) hours after the last day of the thirty (30) calendar-day period in which the qualifying events occurred.
c. RESPONSE TIME FOR INITIALIZING SERVICE RESTORATION:
Clearwire target response time for initializing service restoration following the customer's phone notification to Clearwire and the creation of a Trouble Ticket of a service outage is four (4) hours. If Clearwire is unable to meet this target response time, Customer may request a credit for 50% of Customer's monthly recurring charge for the affected individual service instance of the Professional class Service.
d. UPTIME AVAILABILITY:
Clearwire provides an uptime availability target of ninety-nine and nine-tenths percent (99.9%) for Professional class Services each calendar month during the Term. If a specific instance of Clearwire Professional class service fails to meet the availability target for a particular month, Customer may request a credit for 3% of Customer's monthly recurring charge for each hour of service outage in excess of the availability target. Customer is responsible for requesting any credits herein and to provide Clearwire with test data or other documentation detailing the service outage if so requested by Clearwire.
e. UPLINK / DOWNLINK SPEED:
If the Customer's Professional class Services are continuously and chronologically documented through Customer or Clearwire Tests as functioning below 80% of the Speed Objectives for a subsequent, consecutive 30-day period, Customer may request a credit of 100% of the monthly recurring charge of the individual service instance of affected Professional class Services, or, may terminate the individual service instance of Professional class Services without liability for further term commitments. In the event that Customer terminates the Professional class Services as allowed herein, Customer will remain responsible for all applicable service fees and charges.
Customer is solely responsible for requesting any credits herein and to provide Clearwire with test data or other documentation detailing the service performance as and if so requested by Clearwire. Customer tests must be conducted between 8:00 a.m. and 5:00 p.m. in Customer's service-area local time zone.
Clearwire must receive written notice of Customer's intent to terminate Professional class Services as permitted herein within thirty six (36) hours after the last day of the thirty (30) calendar-day period in which the qualifying events occurred.
f. AVERAGE LATENCY:
Clearwire guarantees a maximum average latency of 50 milliseconds, one-way, from the Clearwire equipment associated with the Customer's specific instance of Professional class Service to a Test point designated by Clearwire on the Clearwire network. Average latency is the hourly average of the latency Tests performed on a service connection. Average latency is not measured when a service connection is experiencing a service outage or during Scheduled Maintenance or Urgent Maintenance. Should Customer's average latency exceed the guaranteed maximum in a calendar month, Customer is eligible for a credit equal to 50% of the monthly recurring charge for the affected individual instance of Professional class Service.
Should Customer's average latency exceed the guaranteed maximum in a subsequent and consecutive month, Customer is eligible for a credit equal to 100% of the monthly recurring charge for the affected individual instance of Professional class Service, or, may terminate the individual service instance of Professional class Services without liability for further term commitments. In the event that Customer terminates the Professional class Services as allowed herein, Customer will remain responsible for all applicable service fees and charges.
Customer is responsible for requesting any credits herein and to provide Clearwire with test data or other documentation detailing the service performance if so requested by Clearwire. Customer tests must be conducted between 8:00am and 5:00pm in Customer's service area local time zone.
Clearwire must receive written notice of Customer's intent to terminate Professional class Services as permitted herein within thirty six (36) hours after the last day of the thirty (30) calendar-day period in which the qualifying events occurred.
g. PING TIMES:
Clearwire does not and shall not guarantee "ping" for any Professional class Services. Ping times are often misunderstood as indicative of throughput or speed of Customer's service.
5. CUSTOMER TERMS; SLA OR RELATED POLICY CHANGES
Notwithstanding anything set forth in this SLA to the contrary, this SLA, its terms, and any and all customers and users hereof and hereunder, are and shall be bound by and subject to Clearwire's applicable customer/user terms of service and policies (including, but not limited to, acceptable-use policy) ("Clearwire TOS") as in existence and as may be amended or updated by Clearwire (within its sole discretion) from time to time. This SLA is a supplement to, and does not condition or limit the Clearwire TOS, and in the event of any conflict between this SLA and any Clearwire TOS, the Clearwire TOS shall control and govern in such instance. All customers hereunder shall proceed through Clearwire's normal on-boarding process for Service activation, and shall expressly evidence their acknowledgement and agreement to the Clearwire TOS. Clearwire also expressly reserves the right to update, change, amend, or revise this SLA at any time in Clearwire's sole discretion. Changes or revisions to this SLA will be deemed effective and binding upon Clearwire's posting of the amended SLA (and/or modified terms or policies) on the applicable Clearwire website(s) available to and accessible by Customer.
6. MISCELLANEOUS TERMS
a. Controlling Law; Forum; Venue. Notwithstanding anything set forth in the MSA to the contrary, this SLA and the rights and obligations of Clearwire and Customer shall be governed by the substantive and procedural laws of the State of Washington, without regard to any conflict of laws principles. Except to the extent necessary for a Party to enforce indemnity or defense obligations under this SLA, any court proceeding brought by either Party must be brought in the appropriate Washington state court or the United States District Court for the King County District, each located in Seattle, Washington. Each Party consents and agrees to personal jurisdiction in either such Washington court. The prevailing Party in any formal dispute will be entitled to reasonable attorneys' fees and costs (including reasonable expert fees and costs), unless the prevailing Party rejected a written settlement offer that exceeds the prevailing Party's recovery. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING BETWEEN THE PARTIES, WHETHER UNDER THIS SLA OR OTHERWISE RELATED TO THIS SLA, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE. THE AGREEMENT OF EACH PARTY TO WAIVE ITS RIGHT TO A JURY TRIAL WILL BE BINDING ON ITS SUCCESSORS AND ASSIGNS.
b. Waiver. No waiver of any term, condition or obligation of this SLA will be valid unless made in writing and signed by the party to which such performance is due. No failure or delay by any party at any time to enforce one or more of the terms, conditions or obligations of this SLA will (a) constitute waiver of such term, condition or obligation, (b) preclude such party from requiring performance by the other party at any later time, or (c) be deemed to be a waiver of any other subsequent term, condition or obligation, whether of like or different nature.
c. Assignment. This SLA (nor any terms hereof) shall not be assigned (whether by operation of law or otherwise), nor any obligation hereunder delegated, by either Party without the prior written consent of the other Party which will not be unreasonably denied or delayed. Subject to the foregoing, this SLA shall inure to the benefit of and bind all successors, permitted assigns, receivers and trustees of the respective Parties.
d. Severability. This SLA will be enforced to the fullest extent permitted by applicable law. If any provision of this SLA is held to be invalid or unenforceable to any extent, then the remainder of this SLA will have full force and effect and such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision.
e. Entire Agreement. This SLA contains the entire agreement between the Parties with respect to the subject matter hereof, and (with the exception of the Clearwire TOS) merges and supersedes any all oral understandings, representations, prior or contemporaneous discussions and/or preliminary agreements. Except as otherwise expressly stated herein, this SLA (unless otherwise expressly provided herein) may be amended only in writing signed by both Parties.