This Service Level Agreement (“SLA”) and these Terms and Conditions form part of the Master Service Agreement, Service Agreement (“MSA”), and/or any and all orders between Customer and 5x5 Industries, LLC (“5x5”). Capitalized terms used herein that are not defined in this SLA shall have the meaning attributed to them in the MSA.
IP Addresses: IP Addresses assigned to the Customer remain the property of 5x5 and are for use by the Customer during the Service Term of the applicable Service. At the conclusion of the Service the IP Addresses may be reassigned by 5x5 at its sole discretion. Customer shall cooperate with 5x5 for any IP address reassignment. 5x5 may, at its own discretion, conduct vulnerability and penetration testing and/or analysis on any device connected to its network and/or utilizing any 5x5 assigned IP address.
Equipment & Service: 5x5 may, at its sole discretion and if available, provide equipment for certain services. The fees for such equipment as agreed in the Order will be added to Customer’s invoice. 5x5 does not guarantee and is not responsible for any specific type of equipment. Customer will be responsible for applicable replacement and/or service costs if the equipment is subject to any damage, unauthorized alteration/modification/repair, abnormal use, misuse, neglect, abuse, or other acts caused by Customer, its employees or any other person. Such action or inaction may void any manufacturer warranties. If 5x5 is unable to install equipment or otherwise deliver Services, 5x5 may terminate Agreement without penalty. Customer acknowledges and agrees 5x5 may conduct network security, vulnerability and/or intrusion scanning of any 5x5 service, IP address, or any other Service, and/or Customer device/network/hardware connected to 5x5 or utilizing 5x5 Service. Cancellation requires 30 days’ notice. The MSA determines any applicable early termination fee. All tools, methodologies, software, documentation, and materials provided by 5x5 remain the exclusive property of 5x5 or its licensors.
Customer Duties: Customer will cooperate with 5x5 in the installation process and any needed troubleshooting steps 5x5 directs Customer to take (at Customer’s cost), which includes accurate completion of the Order containing detailed demarcation information and other onsite contact information, and of the technical questionnaires (IP Questionnaire, BGP Questionnaire, etc.) as provided by 5x5. Customer must be physically present at the time of installation and for any needed troubleshooting. As necessary, Customer will allow access and provide escort, if needed, for 5x5 or its representatives to perform the installation and maintenance of the Service. Failure to provide access shall release 5x5 from its obligations under this SLA. Customer must notify 5x5 of any service relocation. We agree to provide Services to you per the MSA and this SLA applies to your initial service location and/or other location(s) within your building and/or project and/or if you relocate and/or co-locate within the building and/or project. You will return phones and hardware to us, if any, when you are done using our service. Coterminous terms apply to customer’s initial lease within a building and/or project, including relocations, extensions, and other modifications of tenancy. All requests for any change must be in writing from Customer as a service ticket via the Customer Portal. Customer retains sole responsibility for: Its internal IT environment, facilities, power, HVAC, physical security, and cabling; All Customer-owned or third-party hardware, software, and systems not expressly managed by 5x5; and Compliance with applicable laws, regulations, and industry standards.
Service Commitment: As part of 5x5’s commitment to provide a high-quality network to support the Internet Services, 5x5 offers eligible Customers the following guarantees for: Network Availability, Network Latency and Packet Delivery. Internet Service calculations are made between 5x5 designated points of presence (POPs) within the continental United States. Neither 5x5 nor any other carrier controls internet performance of any type (including but not limited to performance, availability, speed, latency and/or packet delivery) of other networks (including but not limited to Customer LAN and/or other carriers’ public or private internet services) systems, services, web sites, or other web technologies as Customer may access from time to time. As part of routine and emergency operations, 5x5 maintains its network. Such maintenance is not a violation of this SLA.
Service Credits: Network Availability. For Internet Services expressly covered by this SLA, 5x5 commits to Network Availability of at least 99.999% in each calendar year, subject to the measurement scope and exclusions in this SLA and the applicable MSA or Order. Network unavailability occurs during a Service Outage. Upon Customer’s request, 5x5 shall issue credits for each Service Outage, calculated by multiplying the percentage specified in the table below by the MRC for the non-performing Service:
Duration of an individual outage Credit Less than 5 minutes 0% MRC At least 5 minutes but less than 4 hours 5% MRC At least 4 hours but less than 8 hours 10% MRC At least 8 hours but less than 12 hours 15% MRC At least 12 hours but less than 16 hours 20% MRC At least 16 hours but less than 24 hours 35% MRC 24 hours or more 50% MRC Network Latency. 5x5 measures network latency for internet services with respect to average round-trip transmission on its Network each month. Network Latency and speed calculations for Internet Services in the continental United States are made between designated points of presence (POPs) within the continental United States (collectively “Network Latency”). Upon Customer’s request, 5x5 shall issue credits for 5x5’s failure to meet the Network Latency metrics specified below by multiplying the percentage specified below by the MRC for the non-performing Service:
L represents measured network latency in milliseconds.
Network latency Credit L < 45 ms 0% MRC 45 ms ≤ L < 55 ms 5% MRC 55 ms ≤ L < 60 ms 10% MRC 60 ms ≤ L < 65 ms 15% MRC 65 ms ≤ L < 70 ms 20% MRC 70 ms ≤ L < 75.01 ms 35% MRC L ≥ 75.01 ms 50% MRC Packet Delivery: 5x5 measures internet service packet delivery on its Network on a monthly basis by averaging monthly sample measurements taken between 5x5’s designated POPs. Upon Customer’s request, 5x5 will issue credits for 5x5’s failure to meet the packet delivery metrics specified in the table below, by multiplying the percentage specified in the table by the MRC for the non-performing Service. The applicable Network Latency and packet delivery bands are determined using the underlying calculated value before it is rounded for display:
D represents the measured packet delivery percentage.
Packet delivery Credit D ≥ 99.999% 0% MRC 99.5% ≤ D < 99.999% 5% MRC 99% ≤ D < 99.5% 10% MRC 98% ≤ D < 99% 15% MRC 97% ≤ D < 98% 20% MRC 96% ≤ D < 97% 35% MRC D < 96% 50% MRC Managed Services:
Services Description: 5x5 shall provide the managed services expressly identified in one or more MSAs or orders. Services may include, without limitation, monitoring, network management, configuration management, fault response, performance optimization, and coordination with third-party carriers or vendors.
No Implied Services: Only those services explicitly described in an MSA, Service Agreement or order are included. Any services not expressly stated and agreed to by both parties are excluded and may require a separate agreement and/or additional fees.
Standard of Performance: 5x5 will perform the Services in a commercially reasonable manner consistent with generally accepted industry standards for similarly situated telecommunications service providers.
Third-Party Dependencies: Customer acknowledges that certain Services depend on third-party providers (e.g., carriers, data centers, equipment and software vendors). Customer is responsible for maintaining required third-party contracts unless otherwise expressly stated in an order.
No Guarantee of Uptime or Outcomes: Unless expressly stated in a written Service Level Agreement, 5x5 does not guarantee uninterrupted service, error-free operation, or specific business outcomes.
Advisory Nature of Recommendations: Any recommendations provided by 5x5 are advisory only. Customer retains final responsibility for implementation decisions and associated risks.
No Data Backup or Security Assumption: Data backup, business continuity and disaster recovery support, cybersecurity, and regulatory compliance services are included only to the extent expressly described in the applicable written Service Agreement, MSA, or Order.
Change Management: 5x5 shall not be responsible for service degradation or failures caused by Customer-initiated changes, third-party changes, force majeure events, or factors outside 5x5’s reasonable control.
Customer Data: Customer retains ownership of its data. 5x5 may access and use Customer data solely as necessary to perform the Services.
Business Continuity and Disaster Recovery Support
5x5 provides business continuity and disaster recovery support only for the specific services, systems, and tasks expressly included in the applicable written Service Agreement, MSA, or Order.
Customer retains ownership of and responsibility for its business continuity and disaster recovery plans, including their development, maintenance, testing, management, and overall execution. 5x5 does not draft, own, manage, approve, or certify those plans. Providing support for specified portions of a plan does not transfer responsibility for the overall plan to 5x5 or expand the agreed scope of Services.
To the maximum extent permitted by applicable law, 5x5 assumes no responsibility or liability for the design, adequacy, completeness, or overall effectiveness of Customer’s plans, or for activities, systems, services, or dependencies outside 5x5’s expressly agreed scope. This provision does not eliminate 5x5’s obligations to perform expressly contracted support. Any liability arising from that support remains subject to the applicable agreement’s exclusions, limitations of liability, and exclusive remedies.
No recovery time, restoration of data, or business continuity outcome is guaranteed unless expressly agreed in writing.
Exceptions: Notwithstanding the foregoing, Customer shall not receive any Service Credit if claimed outage or failed metric is (a) caused by Customer’s (including its agents, contractors and vendors) negligence, intentional act, omission, default, lack of capacity/operational issue(s), and/or failure to cooperate with 5x5 in addressing any reported service problems; (b) due to failure on the part of Customer equipment and/or local area network; (c) due to failure of electrical power not provided by 5x5; (d) the result of scheduled or unscheduled network maintenance activities; (e) due to Force Majeure; (f) the result of disconnection or suspension of the service by 5x5 pursuant to a right provided under the MSA or SLA.
Service Credit Claim Process: In order to initiate a claim for Service Credit, Customer must contact 5x5 within seven (7) business days after the end of the month for which credit is requested. The Service Credit request must provide: (a) the Customer name and contact information; (b) the date and beginning/end time of the claimed outage or failed metric; and (c) a description of the characteristics of the claimed outage or failed metric. Customer will be notified via email upon resolution of the request. If approved, 5x5 will issue Service Credit to Customer’s account, appearing on the next invoice issued. Multiple Service Credits will not be given for the same period of time, i.e., failure to meet multiple criteria during a period of time generates only a single Service Credit.
Communications to & from Customer: As part of our service to Customer, Customer agrees to receive technical, billing, service and sales emails, phone calls and SMS messages. Subject to Federal and local regulations, including but not limited to opt-in where applicable, users of any service agree to monitoring and recording of communications to and from 5x5.
Indemnification: To the fullest extent permitted by applicable law, Customer shall defend, indemnify, and hold harmless 5x5 Industries, LLC, its affiliates, suppliers, licensors, contractors, and each of their respective owners, officers, directors, employees, and agents (collectively, the “5x5 Indemnified Parties”) from and against all third-party claims, demands, actions, investigations, proceedings, liabilities, losses, damages, judgments, settlements, fines, penalties, costs, and expenses, including reasonable attorneys’ fees and defense costs, arising out of or relating to:
(a) Customer’s or any Customer user’s access to, use of, misuse of, resale of, sharing of, or inability to use the Services;
(b) Customer’s equipment, networks, systems, data, content, communications, security practices, or failure to maintain appropriate security, backups, permissions, or regulatory compliance;
(c) any allegation that Customer data, content, communications, equipment, or use of the Services violates applicable law or infringes, misappropriates, or otherwise violates a third party’s rights;
(d) Customer’s or any Customer user’s violation of the Acceptable Use Policy, the applicable Service Agreement, Order, Service Level Agreement, or Terms and Conditions; or
(e) any negligent, reckless, fraudulent, unlawful, or willful act or omission of Customer or any person accessing or using the Services through Customer.
5x5 shall provide Customer with reasonably prompt notice of an indemnified claim; provided that any delay in notice will relieve Customer of its obligations only to the extent Customer is materially prejudiced by the delay. Customer may not settle an indemnified claim without 5x5’s prior written consent if the settlement admits fault by, imposes liability or obligations upon, or fails to provide an unconditional release to any 5x5 Indemnified Party.
5x5 may, at its option, participate in the defense with counsel of its choosing or assume control of the defense at Customer’s expense. Customer shall provide all cooperation reasonably requested by 5x5. The attorneys’ fees and costs covered by this section are third-party claim defense costs and indemnified losses and are not an award of prevailing-party attorneys’ fees in a direct dispute between 5x5 and Customer.
Customer’s obligations under this section are independent of, are not limited by, and shall not count toward any limitation of liability applicable to 5x5. These obligations survive suspension, expiration, and termination of the Services and all applicable agreements.
LIMITATION OF LIABILITY & EXCLUSIVE REMEDIES: IN ANY AND ALL CASES, THE REMEDIES AS SET FORTH IN SECTION 6 SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER IN THE EVENT OF ANY FAILURE, INTERRUPTION OR DEGRADATION OF ANY SERVICE INCLUDING AN OUTAGE AND/OR ANY 5X5 BREACH OF THE SERVICE COMMITMENT AND/OR MSA. 5X5’S MAXIMUM LIABILITY IN ALL CASES, REGARDLESS OF CAUSE, IS LIMITED TO ONE MONTH’S MRC. IN THE EVENT OF A DISPUTE, IN NO INSTANCE WILL EITHER PARTY CLAIM TO BE OWED, OR PAY THE OTHER’S LEGAL FEES. ANY AND ALL LIABILITY OF 5X5 ARISING OUT OF OR RELATED TO THE SERVICES SHALL BE SUBJECT TO AND GOVERNED BY THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THE MSA, WHICH ARE INCORPORATED HEREIN BY REFERENCE. IN NO EVENT SHALL 5X5’S AGGREGATE LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED ONE MONTH’S MRC (THE “LIABILITY CAP”). TO THE MAXIMUM EXTENT PERMITTED BY LAW, 5X5 SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOSS OF DATA, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THIS ALLOCATION OF RISK AND THAT 5X5 WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS.
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