Mitel will use commercially reasonable efforts to avoid and remedy situations in which Customer is unable to receive inbound calls by means of the Mitel Service (the “Service”). This Service Level Agreement (“SLA”) describes the remedies available to Customer in the event Mitel's Telephony Service application, as reported in (the “Phone Service”) falls below the service levels provided herein. 

1. Phone Service Availability. The Customer acknowledges that Mitel will schedule a daily system maintenance period, as defined below. Mitel may occasionally have to interrupt services outside of this time period, including for purposes of upgrades and maintenance to the Phone Service application and the Mitel’s data center, in which case Mitel shall endeavour to provide notice to Customer of the scheduled downtime via The Service Levels provided under this SLA do not include services provided with respect to the following matters: (i) any problems caused by modifications by Customer to Phone Service not made or authorized by Mitel; or (ii) any problems resulting from the Customer combining or merging the Phone Service with any hardware or software not supplied by Mitel, or not identified by Mitel as compatible with the Phone Service. Notwithstanding anything contained herein to the contrary, the parties agree on the following definitions, terms and conditions:

(i) “Permitted Downtime” means any time during a calendar month in which Customer is not able to receive inbound calls for the following reasons: (a) a scheduled daily maintenance period that occurs between the hours of 2:00 am to 6:00 a.m. Eastern Time; (b) any maintenance outside the daily scheduled maintenance for which Mitel shall endeavour to provide notice to Customer at least 24 hours in advanced via; (c) an emergency maintenance period in which Mitel is required to provide maintenance as a result of conditions beyond Mitel's control, including, without limitation, a Force Majeure Event (as hereinafter defined) or otherwise, which maintenance is required to be performed on an emergency basis to maintain Total Scheduled Availability; (d) software or hardware not provided, controlled or authorized by Mitel; (e) Force Majeure Events; (f) negligent or wilful acts of Customer or its users; and (g) Customer’s failure to implement commercially reasonable changes in equipment or software recommended by Mitel as essential to maintain service levels.

(ii) “Downtime” means any time during a calendar month in which Customer is not able to receive inbound calls for thirty (30) continuous minutes or longer due to the Phone Service for any reason other than a Permitted Downtime.

(iii) “Force Majeure Events” means any event or condition that directly or indirectly prevents Mitel from performing the Services hereunder, is beyond the reasonable control of Mitel, and could not, by the exercise of due diligence, have been avoided in whole or in part by Mitel, and shall include, subject to the foregoing and without limitation: any act of God, natural disaster, earthquake, war, riot, civil war, blockade, insurrection, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Mitel's reasonable control.

(iv) “Total Scheduled Availability” means 7 days a week, 24 hours a day in a calendar month, in minutes.

(v) “Actual Uptime” means Total Scheduled Availability minus Downtime, in minutes.

(vi) “Actual Uptime Percentage” means the Actual Uptime divided by the Total Scheduled Availability multiplied by 100 (Actual Uptime/Total Scheduled Availability X 100)

2. Service Availability Credits. If during Customer’s Service Term, the Actual Uptime Percentage during any calendar month is lower than 99.99%, and Customer requests a credit in writing within ten (10) calendar days of the Downtime, Mitel will give Customer a credit with respect to the Service fees paid by Customer for that month for the Services that were affected by the Downtime by a percentage equal to the applicable service credit percentage set forth below. Such credit will be applied to Customer’s next monthly invoice.

Actual Uptime Percentage   Service Credit Percentage
 99.50% to 99.98% (inclusive)  5% credit
 99.00% to 99.49% (inclusive)  10% credit
 < 99.00%  15% credit

3. Termination for Repeated Downtime. Notwithstanding, if the Actual Uptime Percentage is less than 99.00% in any two (2) consecutive calendar months or three (3) times in any consecutive six (6) month calendar period (each a “Triggering Event”) Customer shall have thirty (30) days from the last day of the month in which the Triggering Event occurred to terminate the Services for cause by providing thirty (30) days written notice of termination to Mitel. Upon receipt of a proper notice of termination, Mitel shall provide, upon Customer’s request, with up to thirty (30) days of continued Services (“Transition Services”) during which time Customer shall coordinate the transition of the Services to a new provider. All fees and credits called for under the Terms of Service shall be in full force and effect during the Transition Services period. Except for Customer’s termination rights set forth above and those in the Terms of Service, any refunds or credits provided pursuant to this SLA will constitute Mitel's sole liability and Customer’s sole and exclusive remedy for any failure to achieve an Actual Uptime Percentage of 99.99%. Actual Uptime Percentage shall be based on monitoring by Mitel, and Mitel will notify Customer of all missed service levels via

Jan. 2018 

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