Common use of Network Unavailability Clause in Contracts

Network Unavailability. The performance objective for the MIS Site Availability/Time to Restore SLA is for the MIS Site Availability to be 100%. If FWC does not meet this performance objective in any given calendar month, Client will be eligible for an MIS Site Availability/Time to Restore SLA credit for each Outage equal to the product of Client’s total discounted Covered MIS Monthly Charges for the affected MIS Ports by a percentage based on the duration of (Time to Restore) the Outage, as set forth in the MIS Site Availability/Time to Restore SLA Credit Table below (“Service Credit”). Network Unavailability shall be deemed to begin upon the earlier of FWC’s actual knowledge of the Network Unavailability or FWC’s receipt of notice from Client of the Network Unavailability, and end when the Service is operational such that the Service is again able to transmit and receive packets to/from the Network and Access Port or Ports, as documented by FWC’s records. Network unavailability does not apply to outages due to a power failure; due to failure of Client’s local network; due to the failure or malfunction of non-FWC services, equipment, facilities, or systems; due to circumstances or causes (i.e. force majeure or act of God) beyond the control of FWC or its agents; caused in whole or in part by the negligence or acts or omissions of Client or its end users or its agents; or due to the failure or malfunction of services, equipment, facilities, or systems outside the FWC network past the point of minimum point of entry at the Client’s site. Where Client provides its own local access circuits, any periods of Network Unavailability caused by failure of such local access circuits shall be further excluded from any calculation of Network Unavailability. Notwithstanding anything to the contrary in this SLA, in the Agreement or in any SOW, in no event shall any Network Unavailability or failure to meet any objectives or parameters under this SLA be deemed to be or constitute a breach by FWC of this SLA, the Agreement or any SOW.