WIRUlink Pty Ltd (hereinafter known as “WIRUlink”)
The Customer (hereinafter known as the “Customer”)
In this Agreement, unless the context otherwise indicates:
the singular shall include the plural and vice versa;
reference to the masculine gender shall include the feminine gender and vice versa;
natural persons shall include created entities (corporate or unincorporated) and vice versa; and
the headings in this Agreement are used for the sake of convenience and shall not govern the interpretation hereof.
In this Agreement, unless the context otherwise indicates:
“Day” shall mean 8 (eight) Hours.
“Excluded Event(s)” shall mean the events excluded from the Target Service Level, as defined in paragraph 5.2.
“Hours” shall mean 8am until 5pm, week days, excluding weekends and public holidays.
“Initial Period” shall mean the period referred to in the Service Contract.
“Peak Information Rate (PIR)” shall mean the maximum data transfer rate (whether such maximum is the result of configuration or physical limitations) of a Primary Interface in any direction (TX or RX) at a time.
“Peering Locations” shall mean the closest Teraco Data Centre where WIRUlink has an active presence at the time.
“Presentation Interface” or “Primary Interface” shall mean a physical interface on the WIRUlink outdoor radio at the Customer service address, through which WIRUlink and the Customer exchange network traffic as part of a Service.
“Service(s)” one or more of the wireless RUSH Professional services provided by WIRUlink to the Customer, as set out in the Service Contract.
“Service Charges” shall mean the monthly RUSH Professional package Service fee (excluding equipment rental or telephone airtime) that WIRUlink charges, as set out in the Service Contract, and may be subject to change with or without notice.
“Service Contract” shall mean the agreement between the parties in terms of which the Services are rendered to the Customer by WIRUlink.
“Service Faulty” shall mean the inability to render the Service, as defined in paragraph 4.
“Service Level Credit(s)” shall mean a deduction against the Service Charges owing by the Customer to WIRUlink as set out in the Service Contract.
“Target Network Latency” shall mean 40ms (forty milliseconds), measured over 5 (five) minutes.
“WIRUlink Network Monitoring System” shall mean the system or group of systems maintained and operated by WIRUlink for the purpose of collecting and storing data on the performance and status of the WIRUlink network.
This Agreement will endure for the Initial Period or until terminated by either party giving to the other not less than one calendar month written notice.
This Agreement shall automatically lapse in the event of the provision of the last remaining Service being terminated for any reason, including but not limited to the termination of the Service Contract.
Service Level Criteria
The Service is regarded as “Service Faulty” in the event that a service call has been logged relating to Service(s), as per the WIRUlink Fault Reporting and Escalation Procedure, in any of the following conditions:
In respect of a Presentation Interface, is not capable of exchanging Internet Protocol datagrams with WIRUlink network equipment located in any Peering Location;
The Average Network Latency, measured over a 5 (five) minutes period, between the Presentation Interface for such Service and the closest Peering Location, exceeds the Target Network Latency.
The Target Packet Delivery Rate is less than ninety-nine per centum (99.0%). The Measured Packet Delivery Rate shall mean, in respect the Presentation Interface for a given service, the proportion, expressed as a percentage, of data packets received at such Presentation Interface that are successfully delivered at, and forwarded from, a Peering Location. Packets discarded as a result of the enforcement of the Peak Information Rate on such Presentation Interface by WIRUlink shall be excluded from the calculation of the Measured Packet Delivery Rate.
Target Service Level
In the event of “Service Faulty”,
WIRUlink has a maximum of 8 (eight) Hours to respond to and acknowledge the customer’s logged fault. This response can be telephonically, via electronic communication mediums or on-site.
WIRUlink has a maximum of 1 (one) Day from logged fault, to resolve the “Service Faulty” condition.
The following events are excluded from the Target Service Level
WIRUlink is awaiting feedback from the Customer to provide more information or test the Service.
WIRUlink is unable to gain access to the equipment or premises where the Service is installed.
Natural disasters, riots, civil unrest or unavailability of electricity.
Where the Customer is in breach of the WIRUlink Acceptable & Fair Usage Policy.
When the Customer account is in arrears.
Signal quality has deteriorated because of Line of Sight related problems such as trees, buildings or other obstacles.
Network maintenance as set out in paragraph 8.
WIRUlink shall be solely responsible for measurement in respect of the Service Level Definitions as set out at paragraph 5 above. Data collected for this purpose by the WIRUlink Network Monitoring System and/or WIRUlink Support Ticket System shall be the sole reference as to the existence of a breach in any Service Level Target. WIRUlink shall make any data so collected available to the Customer upon written request.
Service Level Credits
The Customer shall be entitled to a Service Level Credit in respect of any breach of a Target Service Level set out above at paragraph 5, save that:
In the event that a single event or sequence of events causes the simultaneous breach of more than one Target Service Level, as set out in paragraph 5 above, with respect to an individual Service, then the Customer shall be entitled to a single Service Level Credit in respect of the Service; and
In the event that a breach of a Target Service Level is caused by any Excluded Event, the Customer shall not be entitled to a Service Level Credit in respect of such event; and
Notwithstanding anything to the contrary contained herein, the total monetary value of all Service Level Credits claimed by the Customer during any calendar month shall not exceed the Service Charges payable during that calendar month.
Service Level Credits must be requested by the Customer within thirty (30) calendar days from the date of Service Faulty event, in which entitlement to a Service Level Credit arose, failing which any such entitlement shall be deemed to have been surrendered by the Customer.
Service Level Credits in respect of any Target Service Level breach, as set out below, are expressed as a percentage. Calculation of the monetary value of any Service Level Credit shall be calculated by multiplication of the indicated percentage by Service Charges, in respect of the relevant Service, during the calendar month during which such Service Faulty event occurred, excluding any taxes, surcharges or similar government charges in respect thereof.
Service Faulty events shall entitle the Customer to the following Service Level Credits:
Time (T) exceeding Target Service Level
Service Level Credit
0 hours < T ≤ 8 hours
1 day < T ≤ 2 days
2 day < T ≤ 5 days
5 day < T ≤ 10 days
10 day < T
The Customer acknowledges that in order to meet its obligations herein, WIRUlink may from time to time be required to perform maintenance on equipment used in the provision of the Services.
Any impact on the Services as the result of the need to conduct maintenance shall be considered an Excluded Event, provided that:
WIRUlink informs the Customer, with as much notice as operationally possible in the circumstances and in any event not less than one (1) hour, of the maintenance schedule, including:
The scheduled start time;
The expect duration; and
The anticipated impact upon any Services.
WIRUlink endeavours, whenever circumstance permits, to seek approval from the Customer of the maintenance schedule, so as to allow the customer to plan and to inform its users of any impact upon the Services.
The Customer shall be solely responsible for all equipment and other facilities used in connection with the Service that are not provided by WIRUlink.
The parties consent to the jurisdiction of the Magistrate’s Court having jurisdiction over the person of the defendant. The Customer shall be liable to WIRUlink for all costs incurred on the scale as between attorney and Customer, including collection commission.
No indulgence, latitude, extension of time or omission by WIRUlink shall constitute a waiver by WIRUlink of any of its rights arising from this contract and shall not amount to a condonation by WIRUlink of any act or omission on the part of the Customer and such conduct shall not, in any circumstances whatsoever, give rise to a defense of estoppel by The Customer.
The parties agree that this Service Level Agreement is the entire Service Level Agreement between them. No variation hereof, the waiver of any right, the release from any obligation or the consensual cancellation hereof shall be of any force and effect unless reduced to writing and signed by the parties.