PNAP’s Cloud and Enterprise Services are services designed to allow Clients scalable access to resources and services which may be managed or unmanaged to support application hosting, data storage, protection, and recovery as well as internet connectivity. Certain services are provisioned utilizing a comprehensive Statement of Work (“SOW”) and a Responsibility Matrix (“RM”) delineating the specific services to be performed, and the responsibilities of PNAP and Client.
This Cloud and Enterprise Services Service (CES) Addendum (“CES Addendum”) sets forth the specific terms and conditions under which PNAP (“PNAP”) shall supply Cloud and Enterprise Services to Client. The Core Service Agreement entered into between PNAP and Client fully incorporates the terms herein and provides that this CES Addendum, and Client’s execution of the Master Services Agreement constitutes acceptance of the terms and conditions stated herein. Capitalized terms used but not defined herein shall have the meanings set forth in the Master Services Agreement. The Initial Term length for this Service is set forth on the applicable Service Order Form (“SOF”), executed by PNAP and Client, making reference to these Services. As referred to herein, “Agreement” means this Cloud and Enterprise Services Addendum, together with the MSA and all policies and addenda that are incorporated herein by reference, including the Statement of Work (SOW), Responsibility Matrix (“RM”), Acceptable Use Policy (“AUP”), and Privacy Policy (“PP”). This Agreement sets forth the terms and conditions that apply to the Cloud and Enterprise Services Addendum.
General
PNAP Cloud and Enterprise Services is a set of services designed to lessen the burden of managing everything from core infrastructure to daily administrative tasks. PNAP’s infrastructure services are distinct from other dedicated hosting in that PNAP provides capacity, incident, and maintenance support for all management infrastructure. Client may maintain administrative access depending on the engagement. The Client Statement of Work and corresponding Responsibility Matrix delineates duties, however PNAP is responsible for setting up and configuring hardware, installing and configuring software, technical support, patch management, system maintenance, monitoring and updates. PNAP may (depending on the engagement) provide backups, load balancing, and disaster recovery, as well as security processes including vulnerability scans, intrusion detection (ID) and DDoS (distributed denial of service) prevention and mitigation on an as needed, best effort support basis.
Service Levels
As a general rule all PNAP CES offerings are designed to be 99.99% available, at a minimum, and offer credit back to Clients whenever our service becomes unavailable outside of an established maintenance window. A service outage, unless described differently in the SOW, is any loss of connectivity to the hosted application or system for more than 15 minutes. Our 100% uptime guarantee does not include management systems, portals, and reporting or billing services. The uptime guarantee includes access to virtual machines process and stored data. It is the Client’s responsibility to request the credit from their assigned PNAP Account Executive for any service outage experienced. In some cases advanced service levels are available to the Client per the specific design and architecture specification in the SOW. PNAP will work in concert with Client on specific requirements not outlined in the implementation SOW or this addendum to ensure value is derived from this engagement.
Service Delivery
For the purpose of this section alone “Service Delivery” shall be defined as ability of PNAP to fulfill an initial order for Service based on PNAP’s SOF. Once Service has progressed past installation phase and has been delivered to Client as a working Service this section shall no longer apply. The Service Delivery is dependent on available space, power, hardware and available network connectivity within a given data center. PNAP reserves the right to limit the service delivery to a new Client or expansion of existing Clients based on availability of space, power, hardware, or network connectivity. PNAP also reserves the right to limit Service Delivery in the event that necessary service components including, but not limited to, electrical power, cooling capacity, cabling, rack space, switching/routing/network infrastructure, application software, etc. are either unavailable, unattainable at a reasonable cost to PNAP, or put other Client’s environments at risk of disruption.
For all storage services, PNAP defines a terabyte (TB) as 1024 gigabytes (GB). Any of the following options may be added, individually, to Client Service for an additional fee:
Managed Private Cloud
Managed Private Cloud (MPC) is a dedicated, built to order, infrastructure offering where PNAP’s SOW governs delivery, management, and administrative responsibilities. MPC hardware is owned by PNAP and leased to the Client on a schedule identified in the SOF. At a minimum, PNAP is responsible for managing all systems “beneath the hypervisor”, meaning that PNAP will maintain all components required host operating systems and data. PNAP is not responsible, unless identified in a SOW, for managing Client’s operating systems, applications, data, backups, or disaster recovery.
Virtual Private Data Center
Virtual Private Data Center (VPDC) is a multi-tenant, shared infrastructure offering where a PNAP SOW would only govern delivery, management, and administrative responsibilities in unique cases. VPDC hardware is owned by PNAP and Clients are granted access to a specific amount of computing resources. PNAP is responsible for managing all systems “beneath the hypervisor”, meaning that PNAP will maintain all components required host operating systems and data. PNAP is not responsible, unless identified in a SOW, for managing Client’s operating systems, applications, data, backups, or disaster recovery.
Data Security Cloud
Data Security Cloud (DSC) is a multi-tenant, shared infrastructure offering where a PNAP SOW would only govern delivery, management, and administrative responsibilities in unique cases. DSC hardware is owned by PNAP and Clients are granted access to a specific amount of computing resources. PNAP is responsible for managing all systems “beneath the hypervisor”, meaning that PNAP will maintain all components required host operating systems and data. PNAP is not responsible, unless identified in a SOW, for managing Client’s operating systems, applications, data, backups, or disaster recovery.
Backup and Replication Services
Backup and Replication Services are a multi-tenant, shared data protection offering that provides software, hardware, and connectivity to protect VMs hosted within, and external to, PNAP’s demarcation point. PNAP will manage all hardware and software related to maintaining the service’s availability. In some cases, PNAP will also configure, schedule, and monitor for backups, replication, and completion to ensure success. Client is responsible for communicating requested backup and replication schedule, retry windows, retention periods, and job type during the sales engagement process. Clients may also request changes to any configured setting during the contract period. PNAP will govern all non-default Backup and Replication Service specifics through a SOW. Default backups schedule is one full backup followed by nightly reverse-incremental held for two weeks.
Disaster Recovery Services
The Disaster Recovery Service is virtual machine protection offering that facilitates the recovery of “protected” operating systems and data. PNAP will manage all hardware and software related to maintaining the service’s availability. Through a SOW PNAP will configure and manage the protection mechanisms to ensure Client’s virtual machines are replicating between sites. Generally, Client is responsible for initiating recovery events and executing specific configuration (IP address, DNS, etc...) changes necessary to run application in failed over state. PNAP will provide technical assistance and support fail over attempts as defined in the SOW.
Megaport Cloud Router (MCR)
The Megaport Cloud Router (MCR) is a third-party managed virtual routing service for deploying Layer 3 private connectivity between different networks and service providers. It may be used to connect two or more independent Virtual Cross Connect (VXC) services in a single routing domain, thus providing Internet Protocol (IP) connectivity between all the VXCs attached to that MCR.
The following PhoenixNAP Service Level Agreement ("SLA") is a policy governing the use of the PNAP Cloud Enterprise Services (“CES”) and Disaster Recovery as a Service (“DRaaS”) under the terms of the Master Service Agreement (the "MSA") between PNAP, LLC., and Clients of PNAP. Unless otherwise provided herein, this SLA is subject to the terms of the MSA and capitalized terms will have the meaning specified in the Agreement. We reserve the right to change the terms of this SLA in accordance with the MSA.
General CES SLA
PNAP will use commercially reasonable efforts to make Cloud Enterprise Services available with a Monthly Uptime Percentage of 100%. In the event PNAP does not meet the Monthly Uptime Percentage commitment, Client will be eligible to receive a Service Credit as described below.
If the Monthly Uptime Percentage for a Client drops below 100% during a Service Month, that Client is eligible to receive one (1) Service Credit for every fifteen (15) minute period that Cloud Services was Unavailable up to a maximum amount equal to fifty (50) percent of the usage fees calculated during the Eligible Credit Period or one full month, whichever is lesser. DSC credits shall be 10% of monthly bill per Service Credit and 5% for all other CES products (VPDC/MPC). For the purposes of determining Service Credits Client will only be eligible for Service Credits related to the unavailability of:
Whichever Service was least available during the Service month, PNAP will apply any Service Credits only against future payments otherwise due from Client; provided that:
Service Credits shall not entitle Client to any refund or other payment from PNAP. Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Service Credits are Client's sole and exclusive remedy for any unavailability or non-performance of Services.
To receive a Service Credit, Client must submit a request by sending an e-mail message to [email protected]. To be eligible, the credit request must:
If the Monthly Uptime Percentage of such request is confirmed by PNAP and is less than 100% for the Service Month, then PNAP will issue the Service Credit to Client within one Service Month following the month in which the request is confirmed. Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. PNAP's data and records will be the sole factor for validating claims due to Unavailability.
The Service Commitment does not apply to any unavailability, suspension or termination of Cloud Services, or any other performance issues:
If availability is impacted by factors other than those explicitly listed in this agreement, PNAP may issue a Service Credit considering such factors in our sole discretion.
If PNAP misses the SLA goal because of problems with Client’s behavior or the performance or failure of Client’s equipment, facilities, or applications, PNAP can't give Client credit. Additionally, extenuating circumstances beyond PNAP’s reasonable control such as (without limitation) acts of any governmental body, acts of terrorism, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Client’s Web site could cause some hang-ups that PNAP cannot be liable for.
Network SLA
PNAP guarantees that the network will be available 100% of the time during the billing cycle (excluding scheduled maintenance and promotional bundles which include bandwidth). Clients are not entitled to a credit if the downtime is caused by:
Client should report downtime incidents to us via email to [email protected] or submission through PNAP’s portal at https://portal.phoenixnap.com within three (3) days of the event's commencement. Only one event per report, please. Please include the service type, IP Address, and a full description of the service interruption including logs (if applicable). Downtime officially begins at the time PNAP receives the email "ticket" and verifies an outage, and ends when PNAP has, at its sole discretion, resolved the issue.
If Client are currently behind in payments for Client’s accounts, or have been behind 3 or more times in the preceding 12 months, Clients don't qualify for an SLA credit for Downtime. Valid SLA claims can't be credited if Client has outstanding abuse issues, but once Client’s abuse issues are resolved PNAP will gladly credit all valid claims. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms and Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms and Conditions and are therefore not entitled to SLA credits.
20 Minute Support Response Guarantee. PNAP guarantees that one of PNAP’s talented professionals will respond to Client’s support tickets or inquiry within 20 minutes of submission. This applies to support tickets emailed to [email protected].
Megaport Cloud Router (MCR) SLA
The MCR service has a service availability target of 100%
Service Availability is calculated per Charging Period as Uptime divided by (the number of minutes in the Charging Period less Excused Downtime), expressed as a percentage.
Charging Period means the charging period applicable to the Client’s Service, as specified on the Service Order (and if not specified, a monthly Charging Period applies).
Uptime means the number of minutes in the Charging Period where the MCR is running and able to route packets between connected VXCs.
Excused Downtime is defined as the number of minutes in the Charging Period, rounded to the nearest minute that the link state of Client’s MCR is unavailable due to:
Downtime x Recurring Charge
Charging Period
Where:
Disaster Recovery as a Service (DRaaS) SLA
Cloud Infrastructure Downtime occurs when Client’s server cannot transmit or receive data to/from the Internet due to the failure of infrastructure equipment managed and owned by PNAP.
Consists of all of PNAP’s on-premises cloud infrastructure hardware including routers, switches, and cabling and includes the individual services or software running on the virtual machines (“VMs”); excluding client portals. On Premises cloud infrastructure extends only to the PNAP demark which is PNAP’s network termination point. (L2 or VPN)
Each of the following will be considered an SLA Event for the Disaster Recovery as a Service as provided in Exhibit A:
Client should report downtime incidents and failover requests to us via email to [email protected] or submission through our portal at https://portal.phoenixnap.com immediately of the event's commencement. Only one event per report, please. Please include the service type, IP Address, and a full description of the service interruption including logs (if applicable). Downtime officially begins at the time PNAP receives the email "ticket" and ends when PNAP has, at its sole discretion, resolved the issue. PNAP shall initiate support and failover activation response within twenty (20) minutes from receiving instruction from the client to initiate the failover. Client should utilize the “Failover Hotline” to contact PNAP at 888-261-1312 or initiate a ticket.
If Client is currently behind in payments for Client’s accounts, of has been behind 3 or more times in the preceding 12 months, Client does not qualify for an SLA credit for Downtime. Valid SLA claims can't be credited if Client has outstanding abuse issues, but once Client’s abuse issues are resolved PNAP will gladly credit all valid claims. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms & Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms & Conditions and are therefore not entitled to SLA credits. Making false or repetitive claims will cost Client $50 per incident and may place Client in violation of account Acceptable Use Policy and Terms & Conditions. Clients engaging in malicious or aggressive Internet activities such as attacks or counter-attacks are in violation of the Acceptable Use Policy and Terms & Conditions .
Whichever Service was least available during the Service month, PNAP will apply any Service Credits only against future payments otherwise due from Client; provided that:
To receive a Service Credit, Client must submit a request by sending an e-mail message to [email protected]. To be eligible, the credit request must:
If the Monthly Uptime Percentage of such request is confirmed by PNAP and is less than 100% for the Service Month, then PNAP will issue the Service Credit to Client within one Service Month following the month in which the request is confirmed. Client’s failure to provide the request and other information as required above will disqualify Client from receiving a Service Credit. PNAP's data and records will be the sole factor for validating claims due to Unavailability.
The Service Commitment does not apply to any unavailability, suspension or termination of Cloud Services, or any other performance issues that result from Service Suspensions described in the following sections of the Agreement:
The Service Commitment does not apply to unavailability caused by the following Network related instances:
The Service Commitment does not apply to unavailability caused by the following Software and Hardware related instances:
Commitment does not apply if failover is intended to correct virus related issue, where no previous check point is clean.
SLA Credit Schedule:
Time |
3/5 Min |
Hours One - Four |
Hours Five - Eight |
Hour 24 |
Discount |
10% |
10% |
10% |
70% |
Total Cumulative Discount Percentage |
10% |
20% |
30% |
100% |
Credit |
1 |
2 |
3 |
Chronix(4) |
All within one monthly billing cycle on only that service |
||||
Time |
Hours One - Four |
Hours Five - Eight |
Hours Nine - 12 |
Hours 13 - 16 |
Hour 24 |
Discount |
10% |
10% |
10% |
10% |
70% |
Total Cumulative Discount Percentage |
10% |
20% |
30% |
40% |
100% |
Credit |
1 |
2 |
3 |
4 |
Chronix(5) |
All within one monthly billing cycle on only that service |
|||||
No Product Warranty
PNAP makes no express or implied warranties of product merchantability or fitness for any particular purpose. While all services are designed to be resilient, it is up to the Client to plan for disasters and it is always recommended to keep an off-site backup of critical data in event of critical failure or disaster.
Notice of Loss
PNAP is not liable for any loss or corruption of data. Clients are always encouraged to retain a copy of data. In the event of loss or destruction of or damage to Client data, PNAP will provide notification to Client via e-mail to an address provided by the Client. Client must ensure that the e-mail address is valid.
PNAP will provide all software licensing necessary to delivery managed resources to include, but not limited to; VMWare VSPP, Windows SPLA, Veeam Cloud Connect, and Zerto. Any software installable or key to be delivered to the Client will be defined in a subsequent SOW.
At times, PNAP may require access to environments, hosted or not, to ensure licensing practices and agreements are being followed. This requirement is to protect both PNAP and the Client from unintentionally breaching 3rd party licensing requirements. PNAP may request auditing access to portals, management infrastructure, monitoring systems, and reporting to verify configurations, licensing counts, and adherence to practices set forth in the SOW. Clients have 10 business days to provide access from the date a request is delivered to the Client’s Program Manager.
Technical Reviews
PNAP engineers will review and approve all architectures and proposed changes for technical accuracy and risk to ensure environment stability. Client may request via email a technical review as part of their monthly support allocation to address any technical subjects.
Program Reviews
At the request of either Program Manager, a Program Review (PR) can be scheduled to review SOW performance, areas for improvement, and to address any outstanding programmatic items.
Service Requests
PNAP 24x7 NOC and Infrastructure Engineers will respond to all non-emergency service requests according to the below schedule;
All requests will be acknowledged by the NOC staff within 30 minutes as verification the issue has been received and is being reviewed.
This will be a notification of suggested resolution or escalation. NOC staff will attempt to satisfy the request with available resources, if no resolution is found within 120 minutes the problem will be escalated to the appropriate engineering team for further attention.
Business hours are Sunday through Friday 00:00AM-5:00PM MST
If non-business hour support is requested, Client must indicate that in the service request and the appropriate escalations will be made. Emergency Service Requests are escalated immediately if the below requirements are met, and will be acted upon ASAP;
Technical Support
PNAP’s NOC will provide 24x7 technical support to Client. This support shall include troubleshooting, how-to requests, and fulfill limited operational requests. The NOC will escalate any request that cannot be fulfilled to engineering teams if not able to fulfill request.
Engineering & Operations Improvement Recommendations
PNAP will periodically supply a recommendations report to Client with suggested upgrades, changes to architecture, operational suggestions, and capacity expansion requirements. These are suggestions only and may require additional support hours, monetary funds, or changes to the SOW to implement. These recommendations will be justified and formally delivered to Client’s Program Manager for consideration. Additionally, PNAP will not be held responsible adverse outcomes from Client not adopting suggested changes.
Program & Engineering Support
PNAP will provide overall design and engineering support to Client. Systems engineering services shall include system design activities, trade-off studies, performance analyses, requirements decomposition, concept of operation, and operations training. In addition, PNAP will support Design Reviews and Technical Interchange Meetings as requested by the Client’s Program Manager.
The subsections of this section define the recurring and non-recurring charges and fees pursuant to this schedule.
MONTHLY RECURRING FEES
The Initial Monthly Recurring Charges are the initial monthly fees charged for this Schedule. This fee may be modified by mutual agreement of Client and Provider based on changes to the initial configurations, covered devices, or other similar environment variables.
NON-RECURRING SERVICE FEES
The non-recurring services and fees associated with this Schedule include but are not limited to any Out-of-Scope fees and/or the fees for any associated labor and other services provided under a Statement of Work or for the migration/installation/implementation of Client’s production environment from its current state to Provider’s Cloud/Hosting environment or for other purposes agreed to by Provider and Client, including, but not limited to, those defined in a Statement of Work as one time or non-recurring fees or services whether created at the time of or subsequent to the execution of this agreement.
Initial Setup Fees
The initial setup fees and charges for this Schedule are the one-time non-recurring fees associated with the initial setup of Client’s services. This fee may be modified by mutual agreement of Client and Provider based on changes to the initial configurations, scope, covered devices or other similar environment variables. Initial Setup Fees do not include the charges for Data Migration. Data Migration Fees will be specified and covered under a separate Statement of Work or Project.
The initial setup and other non-recurring fees for setup services provided under this schedule are as follows:
| Non-Recurring Service | Non-Recurring Charge |
|---|---|
| Initial Setup | $ “Amount = 1 non-recurring fees” |
| Second NR service, if any | $”second NR fee” |
| Total Non-Recurring Fees | $ |
PNAP will not support, as part of the Services provided under this Addendum, any of the following:
Applications and Hardware that are considered “End of Life” or “End of Support” (EOL/EOS) are otherwise not supported by the application developer/vendor are out-of-scope under this Addendum, unless specifically identified in a SOW. All EOL/EOS application and hardware supported by a SOW can only be supported as “best-effort” and support cannot be guaranteed.
Onsite services must be executed through remote access and specifically identified in SOW. PNAP must be granted appropriate remote access, appropriate permissions to complete the services, and a physically onsite POC to provide local support.
All items defined as “In-Scope Services” are included in the SOF and SOW unless otherwise noted. All prices are in U.S. dollars and exclude any applicable duties and taxes.
Out-of-Scope services may be provided at Client’s request and on a per occurrence basis at PNAP’s prevailing labor rates. Unless otherwise defined in the SOW, PNAP’s labor rate is $150/hour. PNAP will provide the Client with an out-of-scope warning and estimate level of efforts (in full hours) that must be accepted in writing before out-of-scope work can begin. All out-of-scope work will be considered best-effort and PNAP will not be held responsible for any issues that arise.
As part of the initial setup and during the onboarding process Client will be required to provide the name of its elected internal Point of Contact (POC) and a Program Manager (PM) as well as backups for each. The Client POC’s individually and together serve as a focal point for all information concerning its service activities. Client Program Managers are the only representatives of the Client who can request service additions, modifications, deletions, or out-of-scope work.
In order to add or delete services from this Schedule, PNAP shall accept either written or electronic authorizations from the Client’s Program Manager. Program Managers must submit the request to their Sales or Account Executive for processing.
Services under this Schedule do not include services for problems arising out of: (a) any attempted or actual modification, alteration, or addition of software or hardware undertaken by persons other than PNAP or PNAP’s authorized representatives unless previously approved in writing by PNAP.
Client, by affixing his/her/their signature hereto, acknowledges that (he/she/they) has\have read the above “Exclusions” and fully understands these terms.
Client shall document and promptly report all errors or malfunctions of a system covered under this agreement to PNAP. PNAP shall provide all necessary spare parts and/or other hardware to maintain equipment owned by it necessary to the fulfillment of any service under this Schedule.
Client shall not use anything whether tangible or intangible which is appurtenant to and/or provided by this agreement for any unlawful purpose or for any purpose which is prohibited by PNAP’s Network Abuse Policy and/or Acceptable Use Policy as is posted on its website.
A Statement of Work (“SOW”) and Responsibility Matrix (“RM”) may be used to specify the specific duties, scope, locations, deliverables, standards, activities, and general requirements for any Cloud or Enterprise Service offered by PNAP to a Client.
v.5; 05302023