EXHIBIT H
DEDICATED HOSTING SERVICE DESCRIPTION
QWEST INTERNET MASTER SERVICES AGREEMENT
1. DEFINITIONS. Except as set forth in this Section 1 or as otherwise set forth
in this Exhibit H, capitalized terms shall have the definitions assigned to them
In the Agreement. Except as otherwise set forth herein, technical terms commonly
used in the industry that appear in this Exhibit H shall be so construed.
"Authorized Representative" means an employee, agent, contractor or other person
that Customer designates in writing as having authority to have access to the
CyberCenter and Premises on Customer's behalf. Customer may, at no additional
charge, designate up to three (3) Authorized Representatives who will each be
granted CyberCenter facility access badges. Any additional Authorized
Representatives will be granted CyberCenter facility access badges at the price
set forth in the "Additional Services" section of the Hosting Order Form.
Customer may replace an Authorized Representative upon ten (10) business days
prior written notice.
"Change Management Order Form" (or "CMO Form") means a valid Qwest change order
form that is submitted by Customer which requests certain additions, changes and
deletions to the Services, service components and additional features contained
In the Hosting Order Form.
"Customer Data means the Customer text, data, images, sounds, photographs,
illustrations, graphics, programs, code and other materials transmitted through
the Services hereunder.
"Customer Logical Configuration" (or "CLC") refers to a configuration of
components including CPE (e.g., server, load balancer, firewall, and/or other
equipment), software and other system elements which are utilized in order to
provide the Performance Managed Hosting service and Performance SLA. The
demarcation point for the CLC begins at the point at which Customer
interconnects to the Qwest IP backbone via one or more redundant feeds in a
CyberCenter, and spans up to and includes the Customer server(s) and operating
system(s). The CLC does not include any Customer application(s).
"Customer Web Site" means a customer application which: (I) is comprised of the
Customer Data; (ii) resides on the CPE; and (iii) Is accessible via the World
Wide Web.
"CyberCenter" means a particular Qwest facility within which the Premises are
located.
"Hosting Order Form" means the Order Form detailing the Hosting Services,
service components and additional features, Including the applicable rates,
charges and quantities for each (I.e., the pricing tables) ordered by Customer,
as documented in Exhibit H2 and as may be amended in writing by the parties.
"New Charges" means those new MRCs and/or NRCs that are associated with changes
or additions that Customer wishes to make to any of its existing Hosting
Service.
"Performance Managed Hosting" refers to the dedicated hosting managed service
product, whereby Qwest manages and monitors the CyberCenter and the CLC,
including the operating system(s), but not including any Customer applications
(for which Customer is solely responsible for administering, monitoring and
managing).
"Performance Service" refers to the cooperating and/or redundant community of
servers which are used to provide the same specific data services (e.g.,
database, web-based, applications). For example, a set of two web servers behind
a load-balancing device Is providing the same specific data services and
therefore constitutes a Performance Service. Specific data services may simply
migrate from server to server when one fails or the specific data services may
be active on all of the servers in a Performance Service, Customer may have more
than one Performance Service in its CLC. The Performance Service provides
redundancy and fail-over capabilities designed into the CLCs that will prevent
the failure of Individual components from rendering the overall Performance
Service non-Operational (as defined in Section 7.2), however, the Performance
SLA does not guarantee that the individual elements (e.g., servers, operating
systems, networks, firewalls or Internet connections) will not experience
malfunctions.
"Performance SLA" collectively refers to the 99.5% Standard SLA (as defined in
Section 7.2) and the 99.95% Fault Resilient SLA (as defined in Section 7.2).
Each Performance SLA measures Qwest's performance regarding delivery of the
Performance Service, as measured on the basis of the Performance SLAs goals
outlined below.
"Premises" means that area within a CyberCenter where CPE is installed pursuant
to this Exhibit and the Hosting Order Form.
"Software" means software (including third party software) and related
documentation, if any, provided by Qwest to Customer in connection with any of
the Services.
"Start of Service Date" means the date Qwest makes the applicable Service
available for Customer's use.
2. SERVICE DESCRIPTION. This Exhibit H sets forth the description of Qwest's
Dedicated Hosting service (referred to herein as the "Service" or the "Hosting
Service") as provided pursuant to the Agreement. Except for any changes made to
the Hosting Order Form pursuant to Section 6.2 of this Exhibit H, all terms and
conditions of this Exhibit H and the Hosting Order Form (Exhibit H2) and the
Agreement entered into between the parties shall prevail over any conditions in
any other Order Form, Customer purchase orders, payments or other forms.
A detailed, technical description of the Hosting Service and its various
components (the "Service Description"), which is subject to change at Qwest's
sole discretion, Is available upon request from the Qwest Call Management
Center. The Service Description is subject in all respects to the Agreement
between Customer and Qwest. In addition to the termination remedies set forth in
the Agreement, Customer may terminate this Exhibit without liability (other than
for charges accrued but unpaid as of the termination date) upon thirty (30) days
prior written notice if Qwest materially and adversely changes the Service
Description, so long as written notice of such termination Is delivered to Qwest
within thirty (30) days of the effective date of such material adverse change.
If Customer does not deliver such notice to Qwest within the specified period,
Customer will be deemed to have waived its right to terminate this Exhibit.
In general, the Service is comprised of the following service components and
features and will vary depending upon those Services, features and components
that Customer orders pursuant to the Hosting Order Form:
(a) CyberCenter Facilities - the structure, equipment and systems that make up
the CyberCenter includes monitoring systems, power distribution, storage and
backup infrastructure, LANIWAN connectivity equipment, heating/ventilating/air
conditioning (HVAC) systems and fire detection and suppression systems provided
for the delivery of the Service.
(b) Space - the Service includes the physical space (e.g. rack, cage, cabinet)
which Is provided for the installation and operation of the CPE.
(c) Power - all Premises are provided with standard amounts of power In order to
power the CPE, as more fully detailed in the Service Description. Power circuits
may be ordered for multiple diverse feeds and/or for high power consumption CPE.
(d) Managed Services - the management, consulting or administration services
provided by Qwest required for management services (currently, "Managed
Hosting", "Performance Managed Hosting", "Premium Managed Hosting" and >Absolute
Services"), which may Include hardware, software, operating system and
application management and administration,~ management of shared Infrastructure
services (e.g., storage and content distribution); hourly consulting, time and
materials charges and Installation assistance.
(e) Monitoring Servjces - the systems and personnel required to provide
monitoring of CPE, which may include system checks, network hardware checks and
other monitoring services.
(f) Notification and Reporting - the Service includes notification service of
various Service-related events, including monitoring services and informational
reports (e.g., bandwidth utilization, web server statistics and trouble ticket
tracking).
(g) Internet Bandwidth - the Service includes a high-speed network connection to
the Internet via an Ethernet LAN connection from the CPE to either the Qwest
backbone (if Service is provided at an Out of Region CyberCenter) or to the GSP
backbone (if the Service is provided at an In Region CyberCenter).
(h) 24x7 Call Center and Customer Support - the Service includes problem
management systems and personnel which are available 24x7x365.
(i) Other Services - additional services may include wiring cross-connects to
other network services (e.g., frame relay or ATM networks), domain name
registrations and transfers, and other ancillary services. In addition, Customer
may also order certain data storage and backup services from Qwest, which are
provided pursuant to a separate Service Exhibit.
All Service is subject to facilities and capacity availability. Prior to
providing Service, a completed Hosting Order Form (if not already completed and
attached hereto as Exhibit H2) must be submitted by Customer and accepted by
Qwest. Qwest reserves the right to reject any Hosting Order Form in its
reasonable discretion. All accepted Hosting Order Forms shall be governed by the
terms of the Agreement and this Exhibit H.
3. HOSTING TERMS.
3.1 PREMISES.
(a) License Grant, Qwest hereby grants to Customer a limited, personal,
non-exclusive, non-transferable license ("License") to access the CyberCenter as
reasonably necessary in order to install, maintain and operate Customer's CPE
and the Customer Web Site (if applicable) within the Premises, Customer and its
Authorized Representatives shall access and use the CyberCenter and Premises
only for the foregoing purposes and to interconnect with Qwest's network.
Customer has not been granted any real property interest in the Premises or
CyberCenter and has no rights as a tenant or otherwise under any property or
landlord/tenant laws, rules or regulations. The following items are prohibited
in the CyberCenter: explosives, tobacco-related products, weapons, cameras
(e.g., video, web, etc.), video tape recorders, flammable liquid or gases or
similar materials, electro-magnetic devices, or other materials or equipment
that Qwest, at any time and at its sole discretion, deems prohibited. Customer
and its Authorized Representatives shall not alter or tamper with any property
or space within the CyberCenter, Customer is solely responsible for assessing
its own computer and transmission network needs and the results to be obtained
therefrom. The License Is co-terminus with the term of Service ordered hereunder
and Is subject and subordinate to the underlying ground or facilities lease or
other superior right by which Qwest has acquired its interest in the
CyberCenter. If Customer orders certain Service that requires the installation
of Software and/or equipment, Customer hereby grants Qwest permission to install
and implement such Software and equipment that is reasonably necessary in order
to properly access and monitor the CPE and Customer Web Site in the course of
providing such Service. Neither the License, nor the use of the CyberCenter or
payment of any charges by Customer shall: (a) create or vest in Customer any
easement or other property right, including any roof or subfloor rights, of any
nature In the Premises or CyberCenter; nor (b) limit or restrict Qwest's right
to access, operate and use the Premises, CyberCenter and facilities therein. Any
additional access or property rights including, but not limited to, any roof or
subfloor rights shall be contemplated and granted under separate agreement.
(b) Access to Premises. Customer and its Authorized Representatives shall comply
with the requirements of any lease, rules and regulations of Qwest or its
lessor, including, but not limited to, the Qwest Standards for Facility Security
and Rules of Conduct (the "Standards"). A current copy of the Standards, which
are subject to change at Qwest's sole discretion, is available upon request from
the Qwest Call Management Center, Only Authorized Representatives shall be
permitted to access the Premises and the CyberCenter on Customer's behalf,
Qwest, at its sole discretion may refuse to allow an Authorized Representative
to enter the CyberCenter. Authorized Representatives entering the CyberCenter in
order to access the Premises may, at Qwest's sole discretion, be required to be
accompanied by an authorized employee or agent of Qwest (the "Escort"). All of
Customer's work in the CyberCenter and Premises shall be performed in a safe and
workmanlike manner. Customer's work operations in and around the Premises may be
suspended if, in Escort's sole discretion, any hazardous conditions arise or any
unsafe or insecure practices are being conducted by an Authorized
Representative. Customer shall defend, indemnify and hold harmless Qwest, its
affiliates, and contractors from any claims, liabilities, costs and expenses
(including reasonable attorney's fees), arising out of or related to any damages
caused by Customer, its Authorized Representatives, employees, agents and
contractors to any part of the CyberCenter, Qwest's equipment or equipment of
Qwest's customers.
3.2 CPE.
(a) CPE and Software Ordering. Except as set forth In the Service Description or
unless the parties agree in writing otherwise, Customer Is solely responsibility
for the ordering, installation, operation and Service compatibility of all CPE
required to enable Customer to receive the Service. Prior to installation and
thereafter upon Qwest's reasonable request, Customer will provide Qwest an
updated list of all CPE installed or to be installed in the Premises. If
requested by Customer, Qwest shall, subject to availability and on Customer's
behalf, obtain certain CPE (which also may include Software and/or other
materials). Any CPE provided to Customer by Qwest shall be provided pursuant to
the terms and conditions of a separate agreement or order form, Customer shall
purchase the CPE and/or Software, as applicable, from Qwest and pay to Qwest all
charges associated therewith, Including applicable shipping charges. If any CPE
or Software not provided by Qwest impairs Customer's use of any Service: (a)
Customer shall remain liable for the payment of all Service charges; and (b) any
applicable Service specifications or service levels may not apply. All CPE and
Software provided by Qwest are subject to the terms, rights and warranties set
forth in the manufacturer's or publisher's warranty or end-user license
applicable to such CPE or Software, with no warranty of any kind from Qwest.
Customer grants Qwest a security interest In the CPE and other Customer properly
located In the CyberCenter for purposes of securing any amounts owed by Customer
to Qwest.
(b) Installation and Changing of CPE. Except as otherwise set forth in the
Service Description, Customer shall engineer, furnish, install and test, at its
sole cost and expense, all CPE. If, however, Qwest Is installing CPE on
Customer's behalf, then certain provisions of this Subsection may not apply
Prior to installing CPE ("CPE Installation") or making any CPE or logical
configuration changes ("CPE Change"), Customer must so notify Qwest In writing.
In the case of CPE Installation, Customer must submit engineering plans and
specifications ("CPE Installation Plans") pertaining to the CPE Installation for
Qwest's approval in the form required by Qwest. In the case of CPE Change,
Customer must advise Qwest in writing of the nature of such CPE Change and may
not attempt to make such CPE Change until Qwest approves such CPE Change in
writing. Qwest shall notify Customer of its approval of such CPE Installation
Plans or CPE Change as soon as commercially reasonable (which in some cases will
be immediate approval, but will not be later than five (5) business days after
receiving Customer's written notice). In the case of CPE Installation, Qwest
shall also provide a written response ("Qwest Response") that will include space
assignment, any applicable NRCs in order to prepare the CyberCenter or Premises
for Customer's use (such as custom wiring, custom construction of cage or
dividing walls, etc.), and the date when the Premises will be ready for
installation of the CPE. CPE Installation and any CPE Changes shall not begin
until Qwest grants permission to commence same and may, at Qwest's sole
discretion, be under the direct supervision of an Escort, All CPE shall be
clearly labeled with Customer's name and contact information. Upon completion of
CPE Installation, Customer shall remove all installation material from the
CyberCenter and Premises and shall restore same to their pre-installation
condition.
(c) Customer Data. If Qwest is providing certain managed services (as more fully
described In the Service Description), Qwest will use commercially reasonable
efforts to reproduce the Customer Data on the Customer Web Site and make the
Customer Web Site available and accessible on the Qwest network and/or World
Wide Web, as appropriate. Customer shall deliver the Customer Data to Qwest in
accordance with any applicable specifications and in the form (e.g., digital) as
may be reasonably requested by Qwest. Customer must retain complete copies of
all Customer Data and shall redeliver the same to Qwest if it should be lost or
damaged while stored at the CyberCenter. Customer Is solely responsible for the
editorial supervision of the Customer Data and its compliance with the AUP.
(d) Software Provided by Qwest. If Software (e.g., monitoring or back up agent
software) is provided by Qwest In connection with Service offered by Qwest
("Hosting Software'), then Customer shall be granted the right to use such
Hosting Software in consideration for the payment of any applicable charges and
in accordance with any accompanying documentation. Qwest makes no
representations or warranties with respect to the Hosting Software. Qwest will
pass through and assign to Customer all rights and warranties provided by third
party licensors of the Hosting Software to the extent that such Iicensors permit
such pass through and assignment. Any costs of such assignment shall be borne by
Customer. Except as specifically set forth herein, Qwest has no obligation to
provide maintenance or other support of any kind for the Hosting Software,
including without limitation any error corrections, updates, enhancements or
other modifications.
(e) Maintenance. Qwest will conduct routine, scheduled maintenance within its
CyberCenters as set forth in the SLA, during which time the CPE may be
inaccessible by Customer or unable to transmit or receive data. Unless Qwest
expressly agrees otherwise in writing, Qwest shall have no obligation to
maintain the CPE and/or any Customer software. If Qwest provides maintenance
services as set forth in the Service Description, then Customer must enter Into
the applicable vendor maintenance agreement.
(f) CPE Relocation. Qwest may, upon thirty (30) days prior written notice,
relocate any CPE ("Non-Emergency CPE Relocation') and will use commercially
reasonable efforts relocate such CPE to a location which will afford comparable
environmental conditions and accessibility. The parties will work together in
good faith to minimize any potential, resulting disruption of Service. lf an
emergency event requires the immediate rearrangement or relocation of CPE
("Emergency CPE Relocation"), Qwest may rearrange or relocate the CPE (with the
same care used by Qwest in handling its own equipment) as is reasonably
necessary to respond to the emergency, and Customer authorizes Qwest to take
such remedial actions, Qwest shall use reasonable commercial efforts to notify
Customer prior to performing the necessary Emergency CPE Relocation.
Notwithstanding the foregoing, in the event of an emergency in the CyberCenter,
Qwest's work shall take precedence over Customer's operations in the Premises.
Qwest will bear the cost of any Emergency CPE Relocation of any Non-Emergency
CPE Relocation and will reimburse Customer for any direct damages caused to the
CPE as a result of the CPE relocation where such damage is the result of Qwest's
gross negligence or willful misconduct.
(g) Qwest Inspection and Remedial Rights. Qwest may (but is not obligated to)
make periodic inspections of CPE ("CPE Inspection") upon reasonable advance
notice to Customer, and Customer shall have the right to be present during CPE
Inspection. If, however, such prior notice is not commercially practicable,
Qwest may make such CPE Inspection Immediately, but shall thereafter provide
notice of the CPE Inspection to Customer. The making of, or failure to make, CPE
Inspections shall not give rise to any new, or alter any existing, obligations
or liabilities of the parties under this Exhibit H. If the CPE is not installed
and maintained in accordance with the terms of this Exhibit H, and Customer has
not corrected such non-compliance within ten (10) days after receipt of notice
thereof from Qwest, Qwest may either: (I) suspend the Services; or (I) correct
such non-compliance at Customer's expense. If such condition poses either an
immediate safety threat to people or an immediate threat to Qwest's CyberCenter
or network facilities, Qwest may, immediately and without notice perform such
work and take such action that it deems reasonably necessary ("Corrective
Action"). If Qwest engages in such Corrective Action, Qwest shall not be liable
for any CPE damage or Service interruption. As soon as practicable after taking
such Corrective Action, Qwest will so notify Customer in writing and Customer
shall reimburse all expenses reasonable incurred by Qwest in connection
therewith.
(h) Removal of CPE, Within ten (10) calendar days of the expiration or
termination of this Exhibit or the Agreement Customer shall: (i) remove all CPE
(including any other Customer property located in the CyberCenter, but excluding
any CPE that is owned or leased by Qwest) from the CyberCenter at its own cost
and expense (except where Qwest provides such CPE removal service In the case of
certain managed services ordered by Customer, as defined In the Service
Description); and (ii) return to a Qwest CyberCenter employee any CPE that is
owned or leased by Qwest. If Customer fails to remove its CPE as required by
this Subsection, Qwest may upon ten (10) calendar days written notice, either
(a) return such CPE to Customer's address set forth in the Agreement, or (b)
deem such CPE to be abandoned and move any such CPE to secure storage, and/or
liquidate or otherwise dispose of the CPE In any commercially reasonable manner.
If Qwest elects to pursue any of these remedies, Qwest shall have no liability
to Customer and Customer shall bear risk .of loss and shall be responsible for
all associated costs, and expenses, including reasonable attorneys' fees,.
Notwithstanding anything~ to the contrary contained In this subsection, if
Customer owes Qwest an outstanding balance at the expiration or termination of
this Exhibit or the Agreement, Qwest may, in addition to the foregoing remedies,
retain any CPE or other Customer property located in the CyberCenter and, upon
ten (10) calendar days written notice to Customer, sell them to satisfy such
unpaid sums. Any proceeds of such sale that remain after costs of sale
(Including reasonable attorneys' fees) and satisfaction of any outstanding
balance owed by Customer to Qwest will be returned to Customer.
3.3 MISCELLANEOUS.
(a) Insurance. In order to provide Customer with physical access to the
CyberCenter and proximity to equipment owned by third parties, Customer shall at
all times during the Term of this Exhibit, at its own cost and expense, carry
and maintain the following insurance coverage with Insurers having a minimum
"Best's" rating of A VII (A-i):
(i) "All Risk" Property insurance covering all CPE located in the Premises
in an amount not less than its full replacement cost,
(ii) Commercial General Liability insurance covering claims for bodily
injury, death, personal injury or property damage (Including loss of
use) occurring or arising out of the license, use or occupancy of the
CyberCenter or Premises by Customer, including coverage for
premises-operation, products/completed operations and contractual
liability with respect to the liability assumed by Customer hereunder.
The limits of insurance shall not be less than: (1) Each Occurrence -
$2,000,000, (2) General Aggregate - $4,000,000, (3) Products/Completed
Operations - $2,000,000, and (4) Personal & Advertising Injury -
$2,000,000;
(iii)Professional Liability insurance (including Multimedia Errors &
Omissions insurance) Insuring against any liability arising out of the
use or publication of the Customer Data or the Customer Web Site at
the CyberCenter. Such insurance shall be in the amount of $2,000,000.
Such insurance shall provide a retroactive date prior to the date of
the Agreement and an extended reporting period of not less than three
(3) years after the termination of this Exhibit;
(iv) Workers' Compensation insurance with statutory limits as required in
the state(s) of operation; and providing coverage for any employee
entering onto the Premises, even if not required by statute,
Employer's Liability or "Stop Gap" insurance with limits of not less
than $100,000 each accident; and
(v) Comprehensive Automobile Liability insurance covering the ownership,
operation and maintenance of all owned, non-owned and hired motor
vehicles used in connection with the Agreement, with limits of at
least $1,000,000 per occurrence for bodily injury and property damage.
The insurance limits required herein may be obtained through any combination of
primary and excess or umbrella liability insurance. If applicable, Customer
shall require its subcontractors and agents to maintain the same insurance.
Customer shall forward to Qwest certificate(s) of such insurance upon the
effectiveness of the Agreement and upon any renewal of such insurance during the
Term. The certificate(s) shall provide that: (I) Qwest Communications
Corporation (and its participating affiliates) be named as additional insured as
their interest may appear with respects the Agreement; (ii) thirty (30) days
prior written notice of cancellation, material change or exclusion to any
required policy shall be given to Qwest; and (iii) coverage Is primary and not
excess of, or contributory with, any other valid and collectible insurance
purchased or maintained by Qwest.
(b) Qwest Control. Customer may access a wide variety of network management,
billing, and reporting tools via Qwest Control, a proprietary web-based
communications management platform that allows customers to control many aspects
of its networked services (including, Hosting Service). Qwest Control allows
customers to access these communications management tools via a secure Web site
(httes:/Xxxxxxxx.xxxxx.xxx) on a 24x7x365 basis. In order to access and use
Qwest Control, Customer will need: (I) to review and agree to the terms of the
Qwest Control user agreement posted at xxxxx://xxxxxxx.xxxxx.xxx ("User
Agreement"); (ii) a personal computer with Internet access and a web browser;
and (iii) an enterprise ID, user name, and a password (which will be provided by
Qwest). By accessing the Qwest Control site or using the Qwest Control service,
Customer agrees to abide by all of the terms of the User Agreement.
4. OBLIGATIONS OF THE PARTIES.
4.1 Customer agrees that during the Term of the Agreement, Qwest may publicly
refer to Customer, orally and/or in writing, as a dedicated hosting customer of
Qwest (e.g., sample client list), and upon termination of the Agreement, Qwest's
right to publicly refer to Customer as a dedicated hosting customer shall
terminate, Any other public reference to Customer by Qwest shall require the
express written consent of Customer.
4.2 Subject to reasonable availability and in connection with the Service, Qwest
shall, at Customer's reasonable request, assign Internet address space and/or
order domain names for the benefit of Customer, and Qwest will route those
addresses on Qwest's network; it being understood and agreed that neither
Customer nor any of its End Users shall have the right to route these addresses.
Qwest shall retain ownership of all such IP addresses, and upon termination of
this Exhibit, Customer's access to such lP addresses shall terminate. Customer
shall directly pay any MRCs and NRCs associated with the domain names to the
domain name registrar.
5. TERM. The term of this Exhibit H shall commence upon the Effective Date of
the Agreement (or, if applicable, an amendment to the Agreement if this Exhibit
H is added to the Agreement after its Effective Date) and conclude upon the
expiration or termination of the last-to-expire (or terminate) Service ordered
hereunder. The term for Service ordered hereunder will commence on the Start of
Service Date and will continue for twelve (12) months from the Start of Service
Date, unless a longer term commitment is indicated in the Hosting Order Form
(the "Minimum Service Term"). After the conclusion of the Minimum Service Term,
the Service will automatically renew and remain in effect for consecutive one
(1) year renewal terms "Renewal Term"). Upon written notice to the other party
at least sixty (80) days prior to the conclusion any such Minimum Service Term
or the Renewal Term, as the case may be, either party may terminate the Service
associated with this Exhibit. If Customer was granted a discount or waiver of
any NRCs hereunder based upon Customer's Minimum Service Term commitment (an
"NRC Discount") and if the Services provisioned hereunder are terminated prior
to the conclusion of such Minimum Service Term for reasons other than a default
by Qwest, Customer shall pay to Qwest an amount equal to the NRC Discount, in
addition to any other applicable charges set forth in the Agreement. If Customer
requests a partial turn-down of Service prior to the conclusion of the Minimum
Service Term, then Customer shall pay any applicable early Cancellation Charges
for the affected Services.
6. RATES.
6.1 PRICING. Customer shall pay all applicable MRCs and NRCS as set forth in the
Hosting Order Form (as may be modified by the parties), which will commence
billing as of the Start of Service Date. All rates and charges for new Hosting
Services will be quoted by Qwest on an "individual case basis." Pricing for
non-standard hosting services that are not set forth in the Hosting Order Form
and/or the Service Description (Including, without limitation, any non-standard
professional or consulting service requested by Customer or Its Authorized
Representative) are provided by Qwest at Qwest's then-current rates. The rates
set forth in the Hosting Order Form do not include any costs associated with
CPE, all of which charges shall be additional If Service Is being provided by
Qwest at an In Region CyberCenter, then: (i) In Region connectivity to the
global Internet is provided by a separate GSP pursuant to the contract between
the GSP and Customer; and (ii) a separate MRC for such GSP Services will appear
on Customer's invoices; provided, however, the total Ethernet MRCs for the
Hosting Service (i.e., the sum of the GSP MRCs plus the Qwest MRCs) shall equal
those MRCs listed under the "Total Ethernet MRCs" column heading of the
"Ethernet Pricing Tables," which is set forth in the Hosting Order Form, The
applicable MRCs for the GSP Service provided by the GSP listed under the "GSP
MRC" column of the Hosting Order Form are solely for illustrative purposes and
for the convenience of the Customer, lf Service Is not being provided by Qwest
at an In Region CyberCenter, then the applicable MRCs (e.g., 1 year, 2 year,
etc.) for the Hosting Service provided by Qwest shall be those listed under the
"Total Ethernet MRCs" column heading of the "Ethernet Pricing Tables," which is
set forth in the Hosting Order Form, and the GSP Services and MRCs do not apply.
6.2 CHANGES TO HOSTING SERVICE. If Customer wishes to make any "changes" (I.e.,
modifications and/or additions) to any of its existing Services, Customer may
either: (a) contact its designated Qwest sales representative in order to
execute a new Hosting Order Form containing such changes and the applicable New
Charges, or (b) if Customer Is visiting one of Qwest's CyberCenters, then
Customer may complete a CMO Form (which is available in the CyberCenter)
requesting such changes and submit it to a CyberCenter employee; provided,
however, the such employee shall have no authority to bind Qwest contractually
or to quote pricing for any of the requested changes indicated on the CMO Form,
Qwest may reject all or any portion of the CMO Form in its reasonable
discretion. If accepted by Qwest, those new Services that were changed pursuant
to the CMO Form will be subject to New Charges, at the MRCs and NRCs set forth
in the Hosting Order Form, and if such MRCs or NRCs are not specified in the
Hosting Order Form, then the New Charges will be set forth In a new Hosting
Order Form. The effective date for the New Charges will be as of the date that
Qwest makes the requested change (and/or addition, as the case may be) in the
Services (or service components or additional features, as the case may be). If
the requested changes or additions are outside the scope of a standard Order
Form or CMO Form, then the parties will execute a mutually agreeable amendment.
Under no circumstances may Customer decrease the Ethernet Bandwidth that
Customer previously ordered.
6.3 MISCELLANEOUS, Qwest will not modify the rates set forth in a Hosting Order
Form during the first twelve (12) months following the Start of Service Date
("Rate Lock Term"); provided, however, Qwest may modify such rates prior to the
expiration of the Rate Lock Term if such modification is based upon Regulatory
Activity. After the expiration of the Rate Lock Term, Qwest reserves the right,
upon sixty (60) calendar days prior written notice to Customer, to modify the
rates set forth in a Hosting Order Form or eliminate certain components of the
Service; provided, however, Qwest may reduce the sixty (60) day notice period,
as necessary, if such modification is based upon Regulatory Activity, If Qwest
materially increases the rates set forth in a Hosting Order Form, Customer may
terminate the affected Service, so long as written notice of such termination is
delivered to Qwest within thirty (30) calendar days of the effective date of
such change. If Customer does not deliver such notice to Qwest within such
thirty (30) day period, Customer will be deemed to have waived its right to
terminate the affected Service. Unless the parties shall otherwise agree in
writing, Customer shall have sole responsibility for ordering, securing
installation and ensuring proper operation of any and all equipment required to
enable Customer to receive the Service, Customer shall not be eligible for any
discounts or promotional offers other than those specifically set forth in this
Exhibit H, the Hosting Order Form or in an attachment to this Exhibit H, all of
which shall be signed by Customer and accepted by Qwest.
7. SLA.
7.1 GENERAL HOSTING SLAS. The Internet bandwidth component of the Hosting
Service provided hereunder is subject to the Network SLA, which is effective as
of the first day of the second month after initial installation of Services. In
addition, for dedicated hosting customers with CPE located In a CyberCenter, the
Qwest IP Network which is a component when measuring the SLA (i.e., Network
Availability, Network Delay and Reporting Level Goals), shall also include all
network equipment up to, but not including, the first Customer device which is
connected to a Qwest-owned switch. CPE located in a Customer's rack or cage
space is specifically excluded as a component and shall not be factored in when
determining the SLA. In addition, the method of notifying dedicated hosting
customers that the Service Is unavailable (see "Reporting Level Goal" set forth
in the SLA) will vary depending upon which level of Service for which Customer
contracts (e.g., Qwest will notify Customer via email if providing "enhanced"
service, and via email, fax and/or phone if providing "premium" service).
7.2 SLAS APPLICABLE TO PERFORMANCE MANAGED HOSTING SERVICE. This Section 7.2
shall only apply those customers that order Performance Managed Hosting Service.
In order to provide the Performance Managed Hosting Service, Customer shall only
have shared "root" or "administrator" access to its servers ("Root Access"). All
other devices shall be solely managed by Qwest in order that Qwest may provide
the Performance Managed Hosting Service to Customer as set forth in the
Performance SLA. Customer may not re-image the CPE (e.g., removing or altering a
monitoring agent; altering passwords, operating system, kernel parameters,
directory structure, or disk partition structure; etc.) associated with the
Performance Managed Hosting Service, Any such re-Imaging shall render the
Performance Hosting SLAs null and void, Monitoring and management of Customer
environments utilizing Customer's own server image will be on an ICB utilizing
the SOE management hours purchased by Customer. Any additional SOE management
hours required to manage this build will be invoiced at Qwest's then-current
rates.
(a) Performance SLA. If Customer orders Performance Managed Hosting Service,
then in addition to the general Hosting Service SLAs set forth in Section 7.1,
the Performance Managed Hosting service ordered will also be subject to the
Performance SLA set forth herein. Performance Managed Hosting Includes two
levels of Performance SLAs from which Customer may choose: (i) the "99.5%
Standard SLA," and (ii) the "99.95% Fault Resilient SLA." The 89,5% Standard SLA
refers to the specific Performance Service which has an uptime service level
agreement goal to experience aggregated Outages of no more than 219 minutes per
month (219 minutes = (100%- 99.5%) x 60 minutes x 24 hours x 30.42 days). An
"Outage" refers to the simultaneous and continuous failure of one (or more)
Performance Services In a CLC installed for usage by the Customer. An Outage
will be deemed to occur when one or more Performance Services In a CLC is
non-Operational (I.e., each and every server's operating system(s) in that
Performance Service fails to respond to Qwest's monitoring and management
tools). The 99.95% Fault Resilient SLA refers to the specific Performance
Service which has an uptime service level agreement goal to experience
aggregated Outages of no more than 22 minutes per month (22 minutes = (100%
99.95%) x 60 minutes x 24 hours x 30.42 days). Customers purchasing Performance
Managed Hosting service must adhere to the approved CLC configurations and the~
standard performance operating environment ("SPOE") associated with the
Performance SLA that Customer selects in order to qualify for the applicable
Performance SLA. For example, if a Customer selects the 99.95% Fault Resilient
SLA, Customer must purchase dual network feeds, dual power feeds, dual supported
firewalls, dual supported load balancers, dual supported switches, and two or
more identical servers sharing loads. Customers are entitled to one Performance
SLA per CLC. Qwest meets the Performance SLA goal applicable to the Performance
Service in the CLC as long as it is Operational for the uptime selected by
Customer (i.e., 99.5% or 99.95%). A Performance Service is considered
"Operational" as long as the operating system(s) is functioning properly in at
least one server in each Performance Service, as determined by Qwest's
monitoring and management tools.
(b) Outages: Credits. Qwest will aggregate the number of Operational and
non-Operational minutes for purposes of calculating the Performance SLA. If 2 or
more Performance Services in a CLC are non-Operational at the same time, the
overlapping amount of such non-Operational time shall only be counted once for
purposes of calculating any Outages (I.e., overlapping minutes are not counted
twice). The Outage duration is measured from the time the trouble ticket is
opened to the time the affected Performance Service is Operational again.
Moreover, for purposes of measuring the duration of any Outage(s), the
applicable non-overlapping time periods shall be aggregated each month. If an
Outage occurs, a trouble ticket will be issued. Once the Outage is resolved,
Customer will be notified and a Root Cause analysis will be performed. If
Customer's Performance Services in the CLC experience non-overlapping Outages
that collectively exceed the stated Performance SLA selected by Customer (i.e.,
219 total minutes for 99.5% Standard SEA and 22 total minutes for 99.95% Fault
Resilient SEA), Customer will be entitled to one Performance SEA credit per CLC
(as calculated below). The amount of the Performance SEA credit shall equal the
pro-rata Performance MRCs for one day of CLC value for each cumulative hour (or
a portion thereof) that the Performance Service Outage exceeds the specified
Performance SEA. "Performance MRCs" collectively refers to the then-existing
monthly recurring charges associated with the then-current: (I) MRCs associated
with the then-current Performance Managed Hosting service; (ii) Ethernet
Bandwidth MRCs associated with the dedicated hosting service (as set forth in
the Hosting Order Form); and (iii) Rack and/or Cage Space MRCs associated with
the dedicated hosting service (as set forth in the Hosting Order Form).
Performance MRCs do not include any other MRCs or NRCs, including, without
limitation, any other dedicated hosting charges, any charges associated with
CPE, or any other services provided by Qwest, By way of example, and not
limitation, if Customer selects the 99.95% Fault Resilient SEA and Customer's
Performance Services experience 2 separate, non-overlapping Outages of 20 and 30
minutes, respectively, in a given month, then the Outages would be aggregated
(i.e., 50 minutes) and since the aggregated Outages exceeded the 99.95% Fault
Resilient SLA allowable downtime of 22 minutes, Customer would be entitled to
one day's Performance MRCs (i.e., 50 Outage minutes - 22 allowable minutes = 28
minutes, which is rounded up to one full hour for purposes of the Performance
SEA) per CLC. The credits associated with the specific Performance SLAs are
subject to the terms of this Subsection 7.2. Customer must initiate a written
request within five (5) business days of the last day of the month in which the
Outage occurred and, upon such request, and at the conclusion of the calendar
month, Qwest will measure the cumulative downtime for each given Performance
Service for that calendar month. A credit shall be applied only to the month in
which the event giving rise to the credit occurred. Outages spanning month-end
will be handled as a single outage and credited appropriately. Any Performance
SEA credits will be promptly issued against Customer's invoice.
(c) Maximum Service Credits; Exceptions.
(i) Under no circumstances will Customer be entitled to Performance SEA
credits in any one calendar month in excess of charges for seven (7) days
of Performance MRCs. Notwithstanding the foregoing, In the event that, in
any single calendar month, Customer would be eligible to receive credits
totaling twenty-four (24) or more days (but for the limitation set forth in
this Section), then, Customer may, at its option and without penalty,
either: (a) cancel the Performance Managed Hosting service feature only,
but leave the Agreement and the remaining dedicated hosting service in full
effect; or (b) terminate the entire Agreement, including the Performance
Managed Hosting and the other dedicated hosting services. In either event,
Customer must provide Qwest with written notice of cancellation/termination
to the Call Management Center with a courtesy copy to the attention of the
General Counsel (at the contact address set forth in the Agreement) within
five (5) business days following the end of such calendar month. Such
termination will be effective forty-five (45) days after receipt of written
notice by Xxxxx. Customer will be required to pay all outstanding balances,
less any Performance SEA credits issued by Qwest, and Customer shall pay
any de-install charges applicable to the return of the CPE (e.g., shipping,
etc.). Customer's remedies for any and all claims relating to the
Performance Managed Hosting (e.g., interruptions, deficiencies, etc.) shall
be limited to those set forth in the SLA.
(ii) In the event of a Network-related outage, as defined in the "Network
Availability Goal" section of the Network SEA, those specific terms,
measurements, SLAs, and remedies shall apply. In the event that Customer is
entitled to multiple SEA credits under this Performance SEA and the Network
SEA arising from the same event, then such SLA credits shall not be
cumulative. Customer shall be entitled to receive only the maximum single
SEA credit available for such event (e.g., Customer shell not be entitled
to "double credits" in the event of network unavailability).
(iii) Service credits will not be available in cases where the Performance
SEA is not met as a result of: (a) the negligence, acts or omissions of
Customer, its employees, contractors or agents or its end users, including,
without limitation, the failure of the CLC to adhere to the SPOE or any
re-imaging of the servers by Customer (b) the failure or malfunction of
equipment, applications or systems not controlled by Qwest; (c)
circumstances or causes beyond the control of Qwest, including instances of
Force Majeure; or (d) scheduled service maintenance, alteration, or
implementation, including Normal Maintenance (as defined in Section 7.2(d)
of this Exhibit H). Performance SLAs only apply to Performance Managed
Hosting services provided by Qwest. Accordingly, Customer is solely
responsible for administering and managing all aspects of its
application(s). There are no SLAs associated with the availability (or
unavailability), administration, monitoring or management of Customer's
application(s).
(d) Maintenance Window Definition.
(i) Normal Maintenance. Normal Maintenance shall refer to: (a) upgrades of
hardware or software; (b) preventative and necessary maintenance (such as
upgrading power supplies), or (c) upgrades to increase capacity. Normal
Maintenance while being conducted may degrade the quality of Performance
Services provided which may include a disruption of the Performance
Services; provided, however, that a disruption related to Normal
Maintenance shall not be deemed to be an Outage. Normal Maintenance shall
be undertaken at a time mutually negotiated and agreed upon by Customer and
Qwest during implementation, For maintenance not covered under mutually
agreed upon Normal Maintenance hours, Qwest shall provide two (2) days
prior notice.
(ii)Urgent Maintenance. Urgent Maintenance shall refer to efforts to
correct Hosting conditions which are likely to cause an Outage and which
require immediate correction. Urgent Maintenance, while being conducted,
may degrade the quality of the Performance Managed Hosting and the
Performance Services provided, and which may include an Outage. An outage
related to Urgent Maintenance shall be deemed an outage for purposes of
determining whether the Performance Service is Operational. Qwest may
undertake Urgent Maintenance at any time deemed necessary. Qwest shall
provide notice of Urgent Maintenance to Customer as soon as is commercially
practicable under the circumstances.
Healthcare Quality Solutions Qwest Communications Corp.
/s/ Xxxxx XxXxxx /s/ Xxxx Xxxxxxxxx
Xxxxx XxXxxx Xxxx Xxxxxxxxx
Effective Date: 7/22/02 Effective Date: 7/22/02
