Effective date: 25 March 2014

This Service Level Agreement (“SLA”) forms part of the Cloud Services Agreement (“Agreement”) between Pathway Communications (Ontario 1429481 Inc. o/a Pathway Communications, 95 Apple Creek Blvd., Markham, Ontario L3R 1C7, Canada, hereafter known as “Pathway”, “We” or “Us”) and you, namely the company or other legal entity you represent, who signs up for and commits to use the Pathway Services (collectively, “You”). This SLA is, by reference, a part of the Service Agreement and is incorporated into the Terms and Conditions of every Pathway Service. The expressions used in this SLA will have the same meaning as those defined in the Agreement.

1. SLA objectives

1.1. Our Service Objectives, with reference to this SLA are:

• 1.1.1. To provide you with reliable and continuous Cloud Services, free from unscheduled downtime, outages or disruptions.
• 1.1.2. To employ the best possible technology, equipment, processes and staff and to take effective steps to prevent problems from occurring.
• 1.1.3. To rapidly and efficiently resolve problems, if and when they occur, so as to minimise adverse impact on your Service.
• 1.1.4. To deal with your concerns or issues, promptly, efficiently and courteously.

2. Services covered by this SLA policies

2.1. This SLA covers the following elements of the Pathway Cloud Services:

• 2.1.1. Cloud Server Hosts.
• 2.1.2. Cloud Storage.
• 2.1.3. Cloud Network.
• 2.1.4. Cloud Migration.
• 2.1.5. Cloud Technical Support.

2.2. For more information about Managed Cloud Services, click here to learn more about how we can help you eliminate capital investments and further reduce your IT costs.

3. Definitions

3.1. The following definitions apply to this SLA:

• 3.1.1. “Cloud Server” means the unique virtual machine instance which you have enrolled to use and pay for.
• 3.1.2. “Cloud Server Host” means the physical Pathway server machine which hosts your Cloud Server.
• 3.1.3. “Cloud Storage” means file-level storage of data for Windows and Linux cloud servers running in the Pathway Cloud on Pathway’s Cloud Storage device. Your storage volume is mounted via a secure private connection and specific, standard transfer protocols are used to move data to and from the Cloud Storage device.
• 3.1.4. “Cloud Network” means the portion of the Pathway Network extending from the network egress point of your Cloud Server Host to the outbound port of the Data Center Border Router.
• 3.1.5. “Power” includes UPSs, PDUs and cabling, but does not include the power supplies in the Cloud Server Hosts.
• 3.1.6. “Scheduled Maintenance” means maintenance that is announced at least five business days in advance.
• 3.1.7. “Emergency Maintenance” means any corrective action intended to remedy conditions likely to cause Service degradation, as designated by Pathway in its sole discretion. Emergency Maintenance may include, but is not limited, to actions intended to address hardware or software failures or viruses/worms. Pathway will exercise reasonable efforts to inform you in advance, before interrupting the Service for Emergency Maintenance, but such notice is not guaranteed and failure thereof does not constitute Failure.
• 3.1.8. Billing month” means a period of 744 continuous hours, commencing from the date and time your Service was activated.
• 3.1.9. Performance Standard” means the average level of performance delivery, related to the specific Cloud Service you have enrolled and paid for, in the monthly billing period in which the Service is used.
• 3.1.10. “Failure” means, subject to the provisions, requirements, and limitations of this SLA, a failure by Pathway to substantially meet the Performance Standard related to the specific Cloud Service in the monthly billing period in which the Service was used. Failure will commence when a Trouble Ticket or Service Case is filed requesting assistance in accessing your Service and ends when the Service is reinstated.
• 3.1.11. “Fees” means the Fees for your Cloud Service for the monthly billing period.
• 3.1.12. Network Performance” means the performance of the network between the interfaces of the Pathway servers in your account and those on the same VLAN. Note that each of your Cloud Servers is provisioned with two VLANs, one that is publicly routed and a second that is private.

4. Performance standards

Pathway commits to providing you with Performance Standards (“Standards”) relating to each Pathway Service which you subscribe and pay for.

4.1. Cloud Server Hosts
We guarantee that individual Cloud Server Hosts will be available 99.999% of the time, as monitored from within, and by, Pathway’s monitoring systems. If a Cloud Server Host fails, restoration or repair will be complete within one hour of problem identification.

4.2. Cloud Storage
We guarantee that Cloud Storage will be available to you 99.999% of the time, as monitored from within by Pathway’s monitoring systems, excluding scheduled maintenance. If Pathway’s Cloud Storage Service fails, restoration or repair will be complete within one hour of problem identification.

4.3. Network
We guarantee that our Cloud Network will be available 99.999% of the time in any given monthly billing period, excluding scheduled maintenance.

4.4. Cloud Migration
If Cloud Server migration is required because of Cloud Server Host maintenance or degradation, we will notify you at least twenty four (24) hours in advance of beginning the migration unless we determine, in our reasonable judgment, that we must begin the migration sooner to protect your Cloud Server data. In either case, we guarantee that the migration will be complete within four hours of the time that we begin the migration.

 

5. Your remedies for service failure are service credits

5.1. Pursuant to the terms of this SLA, Pathway will offer you Service Credits if there is a Failure of the Service.

5.2. A Service Credit:

• 5.2.1. Is calculated as a percentage of the monthly Fee as it relates to the relevant Service which you have subscribed and paid for, and further, as it applies to the Service which is adversely affected by the Failure
• 5.2.2. Will be applied at the end of your monthly billing cycle to the monthly billing period during which the Failure occurred.
• 5.2.3. Will be two and a half percent (2.5%) of the Service Fee for each hour for which the Service is down and unavailable, up to a maximum of one hundred percent (100%) of the Fee for the adversely affected Service.
• 5.2.4. Will be calculated in increments of fifteen minutes.

5.3. A Service Credit:

• 5.3.1. Cloud Server Host: Two and a half percent (2.5%) of the relevant monthly Service Fee for each hour that the Server Host is down and unavailable in the monthly billing period, up to 100% of the relevant Service Fee.
• 5.3.2. Cloud Network : Two and a half percent (2.5%) of the relevant monthly Service Fee for each hour that the Cloud Network is down and unavailable in the monthly billing period, up to 100% of the relevant Service Fee.
• 5.3.3. Cloud Storage: Two and a half percent (2.5%) of the relevant monthly Service Fee for each hour, in total, that the Cloud Storage is down and unavailable in the monthly billing period, up to 100% of the relevant Service Fee.
• 5.3.4. Cloud Migration: Two and a half percent (2.5%) of the relevant monthly Service Fee for each hour that the Cloud Server migration exceeds four hours in the monthly billing period, up to 100% of the relevant Service Fee.
• 5.3.5. Cloud Technical Support: There are no Service Credits available for Failure of Cloud Technical Support.

5.4. Illustration

• 5.4.1. Illustratively, if your monthly Cloud Server Service Fee is (say) Four Hundred Dollars ($400.00), then in the unlikely event that Pathway’s Cloud Server Host is down and unavailable for one hour, you will receive a Service Credit, equivalent to two and a half percent (2.5%) of your monthly Cloud Server Service Fee, amounting to Ten Dollars ($10.00).

6. Limitations, exclusions and warranty disclaimer

6.1. You will not be entitled to receive a Service Credit if:

• 6.1.1. You are in breach of your Services Agreement with Pathway, (including your payment obligations to us) until you have cured the breach.
• 6.1.2. If downtime would not have occurred but for your breach of your Agreement with Pathway or your misuse of the Pathway Cloud system.

6.2. To receive a Service Credit you must:

• 6.2.1. Contact The Pathway Accounts Department within thirty (30) days following date when the Failure occurred.
• 6.2.2. Show that your use of the Service was materially and adversely affected as a result of the Failure, to be eligible for a Service Credit.

6.3. The total of all Service Credits due to Failures in a monthly billing period, will not exceed one hundred percent (100%) of the lower of:

• 6.3.1. Your aggregate monthly Fee for the relevant Service which is adversely affected by the Failure in a month; or
• 6.3.2. Your aggregate monthly Fee for all your Pathway Cloud Services in the billing period of a month.

6.4. Other Services which were not affected by the Failure, or which were available during the Failure will be excluded when determining Service Credits

6.5. Service Credits which exceed one hundred percent (100%) of your Fee for the Service in a billing period of a month will not be carried forward to future billing periods or applied to other services or other Pathway customers.

6.6. Only Failures due to Pathway problems in the Pathway owned and controlled Cloud network, data centre, systems, hardware and software as these relate to Cloud Services which you are using and paying for, constitute Failures, and only those Failures are covered by this SLA. Notwithstanding any provision to the contrary in this SLA, Service outages, downtime, unavailability, losses, delays or problems related to or caused by the following do not constitute Failures :

• 6.6.1. Scheduled Maintenance or Emergency Maintenance
• 6.6.2. Any software or application on your Cloud Server, unless such are expressly covered by a separate Service Agreement;
• 6.6.3. Acts or omissions related to your operating system, applications, equipment or facilities;
• 6.6.4. Use or misuse of the Service by you or anyone authorised by you ;
• 6.6.5. Errors by your users or server administrators ;
• 6.6.6. Matters outside the control of Pathway such as (but not limited to) network performance at your physical location, Internet connection failures, DNS issues, Internet anomalies;
• 6.6.7. Denial of service attacks, sabotage, viruses, worms, malware, acts by hackers or other wrongful third party actions;
• 6.6.8. Fires, explosions, or force majeure;
• 6.6.9. Customer Portal.

6.7. In the event of any catastrophic Failure we make commercially reasonable attempts to return your Service to pre-Failure state. We will determine, in our sole discretion, the extent of effort and resources required to undertake such recoveries. Recovering data after more than one disk fails in a RAID array or other comparably complex recoveries are beyond the scope promised. Pathway is not required to assist you with any application software.

6.8. Pathway supports a limited set of common operating systems and only supports such operating systems that have not been modified in any way by the Customer. No guarantee whatsoever is provided on the success of any recovery.

6.9. Under no circumstances will Pathway be responsible for the restoration of any data to Cloud Storage or for the loss of any data.

6.10. The SLA does not apply to any Services or elements of Service which are not specifically identified or described in the SLA.

6.11. In the event that multiple periods of Failure overlap in time, credits will not be aggregated, and you will receive credit only for the longest such period of Failure. Pathway is not required to issue multiple credits for a single incident; in the event that a single incident calls for credits pursuant to multiple Services, Pathway will decide, in its sole discretion, which credits to award.

6.12. The maximum credit during a single calendar year, for all Service features combined, is two months’ Service fees, regardless of the length of Failure or the number of occurrences.

6.13. In the event that credits for any calendar month exceed 25% of Pathway’s revenues for such period, Pathway may reduce and pro-rate the value of credits given to you for such period so that the aggregate credit given to all Pathway customers does not exceed 25% of Pathway’s monthly revenues. As used in this paragraph, “Pathway’s revenues” and “all customers” refer to revenues and customers from Cloud Services sold under the “Pathway” brand and not to revenues or customers from any other business unit operating under the Pathway name or providing services other than or in addition to Cloud Services.

6.14. Pathway may employ such accounting procedures as it chooses in calculating revenues, in its sole discretion, and nothing herein will be construed to require that Pathway disclose non-public information about its finances to Customer or to any party.

6.15. Service Credits available pursuant to this SLA apply only to future service delivery. Pathway is not required to provide refunds pursuant to this SLA. If you retain a credit balance on termination of your account in question, such credit is forfeited. Notwithstanding the foregoing, credits will not be applied against fees for any other Pathway services, bundled support, or setup fees.

6.16. This SLA is part of your Agreement with Pathway and along with the Pathway AUP and Privacy Policy is subject to the terms and conditions stated in those documents. The remedies set forth in this SLA are your sole and exclusive remedies for any Failure or other failure of the Service, including without limitation for any breach of warranty, except as specifically set forth in the Pathway Service Agreement. Performance pursuant to this SLA is not guaranteed, and neither this SLA nor any other portion of the Agreement provides any other remedies for any Failures to meet the Standards.

7. Other

7.1. Pathway will attempt to provide several other services, systems and processes which are related to the Cloud Services on a consistent, trouble free and regular basis. However, due to the nature of these systems, processes and services, we cannot offer you Service Credits related to the following:

Cloud technical support

Timing

7.1.1. Cloud Technical Support will be available 24 hours a day, seven days a week every day of the year, via telephone (local to Toronto 416 and 905 area codes) and email.

Process

7.1.2. Pathway Support staff will follow an ITIL®-defined system for service response and resolution, which will include:
7.1.2.1. Call response targets
7.1.2.1.1. Phone average time to answer: 60 seconds
7.1.2.1.2. Email average time to answer: 120 minutes
7.1.2.2. Trouble ticket creation and assignment:
7.1.2.2.1. 100% of all calls and emails answered
7.1.2.2.2. 100% call-backs, within 48 hours, to you, for every ticket created and closed
7.1.2.3.Repair, reconstruction or resolution action commences as follows:
7.1.2.3.1. Emergencies – action commences within thirty (30) minutes. Emergencies include: Server down, Packet loss exceeding Pathway’s acceptable limits, major Routing issues, Cloud Storage unreachable for thirty (30) minutes.
7.1.2.3.2. Non emergencies – action commences within one-hundred-twenty (120) minutes. All other cases included in non-emergencies. Pathway may reclassify any case or Ticket misclassified as an emergency and such case will not qualify for emergency treatment. Note that Pathway does not guarantee resolution or repair times, and this SLA does not provide a guarantee related to time taken to repair, resolve or reconstruct Services.
7.1.2.4. 7/24/365 Network Monitoring and Systems Management:
7.1.2.4.1. Network Monitoring: 24 hours a day, every day of the year from Pathway’s network operations centres (“NOCs”)
7.1.2.4.2. Systems Management: 24 hours a day, every day of the year from Pathway’s network operations centres (“NOCs”)
7.1.2.5. Accounting and Billing Queries:
7.1.2.5.1. Phone and email response: Mondays through Fridays 9 am to 5 pm EST

Data centre physical security
7.1.3. Pathway will ensure the presence of on-site security guards in the Pathway Data Centre at all times, 24/7/365. These staff will follow Pathway’s security policies and procedures, which include, amongst others, a protocol that visitors must wear badges and must be authorized to visit the premises.

* ITIL is a registered trademark of AXELOS Limited.