1 Instant Servers Support Services Policy
This Schedule sets forth Telefónica’s terms and conditions applicable to the support services to be provided by Telefónica with respect to the Services, as well as providing a description of Telefónica’s technical support levels.
Capitalized terms used herein shall have the meaning set forth below, or in the Agreement, as applicable:
- a) “Error” means an error in the Services which causes a material non-conformity of the Services with the specifications therefor set forth in Telefónica’s published documentation (the terms and conditions of the Agreement).
- b) “Error Correction” means the use of reasonable commercial efforts to correct Errors.
- c) “Fix” means the repair or replacement of object or executable code versions of the Services to remedy an Error.
- d) “Workaround” means a change in the procedures followed or data supplied by Client to avoid an Error without substantially impairing Client’s use of the Services.
1.2 Technical Contacts
Technical contacts are the liaisons between Client and Telefónica for of technical support for the Services. Technical contacts should have received, at the very least, Telefónica’s introductory product training, to ensure that they are knowledgeable about the Joyent Software, and its operating environment in order to help resolve system issues and to assist Telefónica in analyzing and resolving support problems.
1.3 Telefónica Support Offering
- 1. Technical support during support hours as specified for the level of support ordered
- 2. Unlimited web access to Joyent’s knowledge base, forums, wiki and other online tools
- 3. Software Upgrades and Updates of the software provided directly by Telefónica and not by any third party.
1.4 Severity Definitions
Incidents or requests will be grouped into the following categories:
Client’s production use of the Telefónica Services is stopped or so severely impacted that it cannot continue to operate, and the Client has experienced a complete loss of the production service. The operation is mission critical to the business and the situation is an emergency.
Client is experiencing a severe loss of Services. Important features are unavailable with no acceptable workaround; however, operations can continue in a restricted fashion.
Client is experiencing a minor loss of Services. The impact is an inconvenience, which may require a workaround to restore functionality.
Client is requesting information, a product enhancement, or documentation clarification regarding Services.
1.5 Incident response and resolution times
In the table below ‘Business Day’ is defined as 09:00 to 17:00 in the local timezone where Telefónica´s Cloud nodes are deployed.
“Resolution” does not necessarily mean the problem is completely resolved. SLA resolution times require one or more of the following activities be completed:
- • Temporary workaround/fix to restore the business service
- • Permanent fix (may be a result of root cause analysis of an issue)
- • Issue escalated to vendor
- • Action plan is created to address the trouble ticket
1.6 Support Response Times by Severity
Telefónica will use commercially reasonable efforts to respond to Client-submitted issues per the above guidelines:
|severity||smart support priority||definition||response||resolution|
|Severity 1||Urgent||See above||1 hour, 24x7||4 Hours|
|Severity 2||High||See above||3 hoursBusiness Day||1 Business day|
|Severity 3||Normal||See above||5 hoursBusiness Day||2 Business Days|
|Severity 4||Low||See above||End of nextbusiness day||5 Business Days|
1.7 Scope of Support Services
Regular support hours are as defined for Business Day.
From time to time, Telefónica updates the Service provided. All such Updates shall be subject to the terms and conditions of the Agreement.
Modifications of Software
At Telefónica's sole discretion and pursuant only to a Services Attachment executed by Telefónica and Customer, Telefónica may accommodate requests for modifications, however, Telefónica is under no obligation to incorporate those requests from Customer in future releases of the Software, or to provide Support Services for such modifications.
Telefónica shall exercise commercially reasonable efforts to correct any Error reported by Client such Corrections shall be subject to the terms and conditions of the Agreement.
As defined in the Service Level Agreement (SLA).
Disclaimer of Warranty
These terms and conditions define a service arrangement and not a software warranty. All licensed products and materials related hereto are subject exclusively to the warranties set forth in the agreement. These terms and conditions do not change or supersede any term in any such agreement.
This Support Service Policy may be updated from time-to-time and is subject to change at Telefónica’s discretion.
All support requests may be submitted online through Telefónica´s web-based customer support systems.
3Guidelines for submitting a support ticket
Any support issue can be submitted by completing a form at the following url https://my.instantservers.telefonica.com/support
Subject of the issue
DescriptionThe details of your request
- 1. Critical
- 2. High
- 3. Medium
- 4. Normal
CategoryThe customer has to chose one of the following
- • Query
- • Request
- • Claim
IP Address of the Server
Any attachment to provide more information about the issue.
5Terms & Conditions
The general conditions (hereinafter the "Conditions") together with, if any, any other specific conditions or policies (including the privacy notice posted in the Portals) referenced in these Conditions or published in the relevant purchase order or through the online contractual process regulate the provision of the Services (as this term is defined below) to You by Telefónica Digital (all together, the "Agreement"), and constitute a binding agreement between Telefónica Digital and You.
By clicking the "I ACCEPT" button indicating that You have read and agree with the terms of the Agreement or accepting any modification to this Agreement in accordance with Condition 1.5 below, You agree to be bound by the terms and conditions of this Agreement.
If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the legal authority to bind such company or entity to this Agreement, in which case, "You" shall mean such company or entity. If You do not have such authority, or if You do not agree with the terms and conditions of this Agreement, You must cancel the registration process and You may not use the Services.
If You are entering into this Agreement in Your capacity as a natural person, You must be of legal age in accordance with laws in Your country. If You are not legal age or You do not have the capacity to be bound by this Agreement, or if You do not agree with the terms and conditions of this Agreement, You must cancel the registration process and You may not use the Services.
Once You have accepted these Conditions as per Condition 1.2. above, You will be required to be registered as a client, which requires You to provide, amongst other things, a valid e-mail address and mobile telephone number. During the registration process, Yo u will be required to choose a User ID and a password for access to the Telefónica Digital Cloud Services Portal.
In order to access the Telefónica Digital Systems (as this term is defined below), You are required to use the user ID and the password which You set Your during the registration process.
You are responsible for keeping Your User ID and password safe and secure and for correctly managing said User ID and password and You undertake to take all precautions necessary to protect the safety and security of Your password. Telefónica Digital shall have no liability whatsoever for any unauthorized use of misplaced, lost or stolen User ID or passwords.
You may change Your password at any time via the Telefónica Digital Services Portal.
You acknowledge and accept that You are responsible for any and all access to the Telefónica Digital Systems using Your User ID and password.
"Agreement" shall mean the agreement as defined in Condition 1.1 above.
"Business Day" means any day, other than Saturday and Sunday or bank holiday in London.
"Client", "You" "Your" means any natural or legal person who has accepted this Agreement in accordance with Condition 1.2 above in order to receive the Services as requested from time to time in accordance with this Agreement.
"Client Content" shall mean any content, information, data, text, software, music, sound, photographs, graphics, video, messages, files, attachments or any other material used, storage, owned or otherwise held by Client when he is being provided with the Services.
"Conditions" shall mean the Conditions as defined in Condition 1.1 above.
"End User" means the end users of the Services to be appointed and identified by You each time You contract for the Services.
"Fees" means the fees to be paid by the Client for the Services.
"Personal Data" has the meaning set out in Article 2 of Directive 95/46/EC (the "Data Protection Directive") and related only to personal data, or any part of such personal data, which either Party receives from the other Party under this Agreement.
"Portals" means the Telefónica Digital Portal and the Telefónica Digital Services Portal.
"Service Level Agreement" means the service level agreement attached as Schedule II of this Agreement.
"Telefónica Digital" "We" "Our" or "Us" means Telefónica Digital Limited, an English company with Company Number no. 7884976, with registered office at 260 Bath Road, Slough, Berkshire, SL1 4DX, United Kingdom.
"Telefónica Digital Portal" means the website accessible through the URL http://cloud.telefonica.com/instantservers through which the Client contracts the provision of the Services.
"Telefónica Digital Cloud Services Portal" means the website accessible through the URL https://my.instantservers.telefonica.com through which the Client may access the Services in accordance with Schedule I.
"Telefónica Digital Systems" means the systems (hardware, software and relevant connection and transmission infrastructure), including the Portals, owned or used by Telefónica Digital to provide the Services.
"Telefónica Group" means Telefónica, S.A. and any other legal entity in which Telefónica, S.A. directly or indirectly,
(a) owns at least 50% of the share capital
(b) has the power to appoint or remove the majority of the members of the management body, or can avail itself of the majority of voting rights by virtue of agreements entered into with the other shareholders, or
(c) has control of the management as a result of rights, agreements or other means which confer the possibility of exerting a decisive influence on such entity business activity.
1.5 Amendment of the Agreement
We may amend these Conditions and/or any other condition or policy of the Agreement at any time by posting a revised version of these Conditions and/or of the relevant condition or policy of the Agreement in the Telefónica Digital Portal.
In respect with these Conditions, We last modified them in the date set forth on the front page of these Conditions.
If We are changing any of the Conditions We will notify You by email. If You want to terminate the Agreement because of the change, You must let Us know (via the means We specify) within: (a) twenty-eight (28) days; or (b) if the change is due to third party or regulatory change, such period as We reasonable specify in Our email notice to You. If You don't let Us know that You want to terminate the Agreement within the relevant period (as defined above), You will automatically be deemed to have accepted the new Conditions. The new Conditions will take effect from the date set out in Our email notice.
Any amendment to the Fees applicable and the specific Services offered in each moment is regulated in Condition IV below.
The Services covered by this Agreement are described in Schedule I attached to these Conditions. The specific Services offered by Telefónica Digital shall be those described in the Telefónica Digital Portal from time to time. Telefónica Digital may modify the Services offered through the Telefónica Digital Portal at any time. Such modification will be regulated by the procedure under Conditions 1.5 above except for the term of twenty eight (28) days described therein that will be replaced by a term of fifteen (15) days, except in case We decide that such modification does not apply to the Services already contracted by You for the term You contracted such Services, in which case, such modification will be applicable from the time it is published in the Portal.
The Client shall request the specific Services to be provided through the Telefónica Digital Portal or API.
You acknowledge that the provision of the Services might not be available in every country, either temporarily or permanently.
2.2 Service Level
You acknowledge that the provision of the Services might not be available in every country, either temporarily or permanently
Telefónica Digital shall provide the Services with the reasonable skill and care of a competent communications service provider, and in accordance with the Service Level Agreement.
In case such Service Level Agreement is not met, Telefónica Digital shall deduct from the following invoice to be issued to You the service level credits included in the Service Level Agreement. Such credits shall be Your sole and exclusive remedy under this Agreement or under the general law for any failure to meet the target specified in the Service Level Agreement. To the extent no targets are specified in the Service Level Agreement for specific Services, Telefónica Digital shall use reasonable endeavours to provide the Services within any time periods and/or by any date indicated to the Client, but all time periods and dates are estimates and Telefónica Digital shall have no liability for any failure to meet any date or perform any of its obligations within the time period indicated.
2.3 Support Services
The support services to be provided by Telefónica Digital are described in Schedule II.
This Agreement shall enter into force from the date that the Client accepts this Agreement in accordance with point 1.2 above, and it shall continue until the last remaining Service is terminated, pursuant to Condition V hereunder.
As consideration for the provision of the Services, Client shall pay Telefónica Digital the Fees.
The applicable Fees will be those published in the Telefónica Digital Cloud Services Portal as updated from time to time. You shall pay the applicable Fees plus the applicable VAT or Sales Tax as required by law.
We reserve the right to modify the Fees at any time by publishing the new Fees in the Telefónica Digital Cloud Services Portal. Such modification will be regulated by the procedure under Conditions 1.5. above except for the term of twenty eight (28) days described therein that will be replaced by a term of fifteen (15) days, except in case We decide that such modification does not apply to the Services already contracted by You for the term You contracted such Services, in which case, such modification will be applicable from the time it is published in the Portal.
The terms and conditions that will apply to the payment of the Fees are included in Schedule III.
5.1. You may terminate the Agreement at any time, for any reason, at Your convenience, provided You give Us five (5) Business Days’ prior written notice. In such case, the provision of the Services already ordered shall continue during the applicable term as described in the relevant online order and such termination will not affect Your requirement to pay the Fees relating to that Service incurred prior to the date of termination.
5.2 We may terminate the Agreement at any time, for any reason, at Our convenience, provided We give You fifteen (15) Business Days' prior notice.
5.3 Additionally, Telefónica Digital may at any time suspend or terminate immediately the provision of the Services and/or Agreement without liability to You if:
(i) You hack or break, or seek to hack or break, any security mechanism;
(ii) We otherwise determine in Our sole discretion that Your use of the Services or the End User’s use of the Services poses a security or service risk that may be subject Us or any third party to liability.
(iii) We determine in Our sole discretion that You, Your employees, directors, officers or agents or any of the End Users, are using the Services or are acting in such a way that the Services provided to other clients or any infrastructure related to the Services are adversely affected.
(iv) You are in default of Your payment obligations hereunder, provided We give a prior notice and You do not remedy it within the following ten (10) Business Days from such breach notice.
(v) We determine, in Our sole discretion, that Our provision of any of the Service to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
(vi) Subject to the applicable law, upon Your liquidation, commencement of dissolutions proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or in You become the subject of a voluntary or involuntary bankruptcy or similar proceeding or if an arrangement with creditors is made or a receiver or administrator is appointed over any other party’s assets or the other party goes into liquidation.
(vii) If You breach any other obligation hereunder.
5.4 Upon the suspension or termination of the Agreement in accordance with this Agreement, (i) in case of suspension, Fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension (including, if any, Your continued storage of data on the Services during the period of suspension), and You will be liable for all reasonable costs and expenses incurred by Telefónica Digital in the implementation of such suspension, (ii) in both cases, You remain liable for all Fees, charges and any other obligations You have incurred through the date of suspension or termination (iii) in case of termination, all of Your rights and Telefónica Digital’s obligations to You under this Agreement shall, unless they have accrued prior to such termination, immediately terminate; (iv) in case of termination You shall immediately cease using the Services and return, or if instructed by Us, destroy any Telefónica Digital Information (as this term is defined below).
5.5. Upon the suspension of the Agreement by Us for any reason other than those under Condition 5.3, We will not erase any of Your Client Content stored in the Telefónica Digital Systems as consequence of the provision of the Services and the applicable Services data storage Fees will continue to accrue.
Upon the termination of the Agreement. We will take immediate action to erase any of Your Client Content stored in the Telefónica Digital Systems as consequence of the provision of the Services upon the effective date of termination, unless otherwise is required under applicable law.
Notwitstanding the foregoing, upon termination of the Agreement for cause under Condition 5.3, Telefónica Digital may need to keep Your Client Content so Telefónica can defend possible legal claims related to such termination. However, Telefónica Digital will still delete information that could not possibly be relevant to such a claim. In any case, Personal data will be deleted when such a claim could no longer arise.
Except in case of the suspension of the Agreement by Us. We will not have obligation to continue to store Your Client Content during any period of suspension or termination or to permit You to retrieve the same.
Finally, the issued and received e-invoices under this Agreement must be archived for the statutory archiving period under the applicable law(s).
5.6 Upon termination of this Agreement, Conditions II, III, V, VII, VIII, IX, XI, XII and XIII will survive such termination.
VI. CLIENT RIGHTS AND OBLIGATIONS - USE OF THE SERVICES
6.1 You shall have the right to use, and authorize the use to Your End Users, the Services in accordance with these Conditions.
6.2 You shall pay the applicable Fees in consideration for the provision of the Services.
6.3 You represent that You shall and shall procure that End Users shall:
(i) comply with any instructions from Telefónica Digital relating to the use of the Services.
(ii) not use the Services in a manner which is inconsistent with a reasonable Client’s good faith use of the Services;
(iii) not use the Services in a manner which, in Telefónica Digital’s opinion, will (or is likely to) adversely affect the provision of the Services to the Client or Telefónica Digital's other customers;
(iv) not use the Services in a manner which may perturb, interfere, distort or damage the Telefónica Digital Systems or any third party's system.
(v) not use the Services fraudulently or in connection with a criminal offence
(vi) not use the Services to send, knowingly receive, store or communicate any material which is illegal, unlawful, offensive, abusive, indecent, defamatory, obscene or menacing, a nuisance or a hoax or any other type of material likely to cause offence;
(vii) in order to harass, spy on, pester, cause annoyance or unnecessary anxiety to any person, or to pass as someone else or act in a manner which may be reasonably deemed to be objectionable, or which is in any way harmful to third parties;
(viii) not use the Services in a way that contravenes any license, code of practice, instructions or guidelines issued by a relevant regulatory authority;
(ix) not use the Services to spam or to send unsolicited advertising or promotional material;
(x) not use the Services to send or transmit anything, content or material which consists of or contains virus software;
(xi) not use the Services in a manner which may damage the reputation of Telefónica Digital or any entity within Telefónica Group, the reputation of the Services or otherwise bring Telefónica Digital into disrepute or the reputation of third parties;
(xii) not use the Services in any manner which violates copyright, trademark, confidentiality, privacy, or which infringes the intellectual or industrial property rights of others;
(xiii) hold and will continue to hold any licenses, consents and/or notifications required under any applicable legislation, regulation and/or administrative order to receive and use the Services;
(xiv) comply with Telefónica Digital’s reasonable instructions relating to health, safety, security and use of the Services;
(xv) comply with all applicable laws and regulatory provisions;
(xvi) comply with any applicable use policy that Telefónica Digital may issue from time to time and posted in the Portals;
(xvii) shall not insert in the Telefónica Digital System any Client Content which breaches or could breach the law, public order, public morality or any third party rights. You understand that any Client Content is the sole responsibility of the Client owning the account from which such Content is originated.
6.4 Furthermore, You shall and shall procure that End Users (or anyone having access to the Services) shall not:
(i) Except as expressly allowed herein, copy, use, reverse engineer, amend, disassemble, disintegrate, decompile, or otherwise attempt to reconstruct, identify, discover or derive the source code, underlying ideas, underlying user interface techniques or algorithms or disclose any of the foregoing, or in any other way interfere with any software provided as part of the Services or any other service or tool made available on the Portals; or
(ii) modify, incorporate into or with other software or create any new software either partially or totally based on any software provided as part of the Services or any other service or tool made available on the Portals;
(iii) transfer, assign or sub-licence their right to use the Services or any software provided as part of the Services or any other service or tool made available on the Portals, or to try to do so;
(iv) use any software provided as part of the Services in order to develop or enhance any product that competes with such software or use such software for other purposes.
(v) remove, change or obscure any warning regarding intellectual or industrial property rights displayed on the Portals or on any other material available on said Portals, including any software provided as part of the Services.
(vi) use multiple "logins" for harmful purposes or in a premeditated manner so as to cause annoyance to others;
6.5 You shall provide Telefónica Digital with any and all information and/or assistance that Telefónica Digital may require in order to perform the Services. You shall ensure the information is complete and accurate. Telefónica Digital shall not be responsible for any failure and/or delay to provide the Services if such failure and/or delay is a result of Your failure to provide Telefónica Digital with the required information and/or assistance.
6.6 You shall notify Telefónica Digital immediately if You become aware that any person is making improper or illegal use of the Services.
6.7 You acknowledge that the Services may enable access to the Internet and that use of the Internet is solely at Your risk and subject to all applicable laws. Telefónica Digital has no responsibility for any information, software, services, goods or other materials obtained by You using the Internet.
6.8 You warrant to Telefónica Digital that You will take all reasonable steps to ensure that any software used with or in connection with the Services that is not provided by Telefónica Digital under this Agreement is not infected by viruses and/or logic bombs, worms, Trojan horses and any other types of disruptive, destructive or nuisance programs.
VII. TELEFÓNICA DIGITAL RIGHTS AND OBLIGATIONS
7.1 Telefónica Digital shall have the following rights:
(i) to be paid with the applicable Fees in consideration for the provision of the Services.
(ii) to monitor and track Your use of the Telefónica Digital Systems and Services.
(iii) to interrupt the Services in order to perform any work that, in Telefónica Digital’s opinion, is needed. Telefónica Digital will do reasonable commercial efforts in order to notify, through the Telefónica Digital Services Portal and/or email, the Client about such interruptions as soon as practicable.
7.2 Telefónica Digital shall have the obligation of providing the Services in accordance with the terms and conditions of this Agreement. Telefónica Digital will make reasonable commercial efforts to provide the Services exceeding the Services Level described in Schedule 2 of this Agreement or posted from time to time in the Portals. In case such Services Levers are not reached, Client shall be entitled to the penalties described in such Services Levels. Such indemnity shall be the only remedy of Client.
VIII. INTELLECTUAL PROPERTY RIGHTS
8.1 Intellectual Property Rights
Other than the limited use and access rights and licenses expressly set forth in this Agreement, We reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) any software, data and other content and printed and electronic documentation information made available from Us to You ("Telefónica Digital Information"); (iii) the trademarks, service marks, service or trade names, logos, and other designations of Us, of any of the companies within Telefónica Group or of Our licensors (“Marks”); and (iv) any other technology and software that We provide or use to provide the Services and the Telefónica Digital Information. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Telefónica Digital Information, the Telefónica Digital Systems, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
Other than the rights and interests expressly set forth in this Agreement, and excluding Telefónica Digital Information and works derived from Telefónica Digital Information, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) Client Content or any other content and data You may send to Us or use as part of Your use of any Services which is designed by Us to permit You to send content or data to use; and (ii) any other software or application owned or licensed to You and that You may use when being provided with the Services (different from the Third Party Software, as defined below).
In the event You elect, in connection with any of the Services, to communicate to Us suggestions for improvements to the Services, including discussions on the community message boards, the Telefónica Digital Information or the Marks (collectively, “Feedback”), We shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and We shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Us and agree to provide Us such assistance as We may require to document, perfect, and maintain Our rights to the Feedback.
During and after the term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against Us or any of Our customers, end users, vendors, business partners, licensors, sub licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
8.2 Third party software
As part of the Services, You may be allowed to use certain software (included related documentation), applications or any other tool developed, owned and/or licensed by any third party ("Third Party Software"). Such Third Party Software is neither sold nor distributed to You and You may use it solely as part of the Services. You may not use or transfer it outside the Services.
You hereby agrees to comply with all terms and conditions set forth in the license terms that such third party may show when access the Third Party Software and otherwise, cooperate with Telefónica Digital to use the Third Party Software only as authorized by such Third Party.
IX. LIABILITY, DISCLAIMERSAND INDEMNITY
A. SUBJECT TO PARAGRAPH 9.1 D AND E OF THIS AGREEMENT, TELEFONICA DIGITAL SHALL NOT BE LIABLE TO THE CLIENT OR THE END USER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT), BUSINESS, REVENUE, ANTICIPATED SAVINGS, GOODWILL, BUSINESS INTERRUPTION, FROM WASTED EXPENDITURE OR ANY LOSS OR CORRUPTION OF DATA, OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER.
B. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TELEFONICA DIGITAL SHALL NOT BE LIABLE TO YOU, TO THE END USERS OR TO ANY THIRD PARTY, FOR ANY DAMAGES OR LOOSES RESULTING FROM THE FOLLOWING:
(I) EXCEPT FOR THE SERVICE LEVEL AGREEMENT, THE USE OR THE INABILITY TO USE OF THE SERVICES;
(II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES.
(III) UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR THE DELETION, DESTRUCTIONS, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR TRANSMISSIONS OR CLIENT CONTENT OR OTHER DATA;
(IV) CLIENT CONTENT;
(V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR
(VI) USAGE BY YOU OF THE SERVICES TOGETHER WITH ANY OTHER SERVICES, SOFTWARE, APPLICATION OR TOOL NOT OFERRED BY TELEFONICA DIGITAL OR USE OF THE SERVICES NOT EXPRESSLY PERMITTED UNDER THIS AGREEMENT.
C. SUBJECT TO PARAGRAPHS 9.1 A, B, D AND E OF THIS AGREEMENT, TELEFONICA DIGITAL’S AGGREGATE LIABILITY RESULTING FROM BREACH OF CONTRACT OR NEGLIGENCE, UNDER ANY INDEMNITY OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT (WHETHER TO YOU, ANY OF YOUR END USERS OR OTHERWISE) SHALL BE LIMITED IN RESPECT OF ALL CLAIMS ARISING IN A YEAR TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY YOU IN THE YEAR PRIOR TO THE YEAR IN WHICH ANY CLAIM ARISES (OR WHERE A CLAIM ARISES DURING THE FIRST YEAR OF THIS AGREEMENT, THE FEES PAID OR PAYABLE UP TO THE DATE ON WHICH YOUR RIGHT TO TAKE ACTION IN RESPECT OF THE CLAIM AROSE).
D. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT THE LIABILITY OF EITHER PARTY FOR: (I) DEATH OR PERSONAL INJURY RESULTING FROM THAT PARTY’S NEGLIGENCE; OR (II) FRAUD OR FRAUDULENT MISREPRESENTATION.
E. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT THE LIABILITY OF EITHER PARTYIN RESPECT OF ANY LIABILITY WHICH CANNOT BE EXCLUDED OR RESTRICTED BY LAW.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO PARAGRAPH 9.1 D AND E OF THIS AGREEMENT, THE EXPRESS TERMS OF THIS AGREEMENT ARE IN LIEU OF ALL WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
SPECIFICALLY, TELEFONICA DIGITAL DOES NOT WARRANT THAT:
(i) THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE;
(ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SERVICES WILL BE ACCURATE OR RELIABLE; OR
(iii) THE QUALITY OF ANY PRODUCT, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET CLIENT’S EXPECTATIONS.
YOU ACKNOWLEDGE THAT YOU ARE THE ONLY RESPONSIBLE FOR YOUR CONTENT AND THAT TELEFONICA DIGITAL DOES NOT PARTICIPAPTE IN THE CREATION, TRANSMISION AND HAS NOT CONTROL OVER YOUR CLIENT CONTENT AND DOES NOT GUARANTEE THAT SUCH CLIENT CONTENT COMPLIES WITH LAW OR DOES NOT INFRINGE THIRD PARTY’S RIGHTS. YOU SHALL BE LIABLE FOR ANY CLAIM RELATED TO YOUR CLIENT CONTENT, INCLUDING THE INFRINGEMENT THE APPLICABLE LAW OR ANY THIRD PARTY’S RIGHTS.
(I) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AND (II) ANY ACTION OR NO ACTION TO BE PERFOMED BY YOU FOLLOWING THE INFORMATION OR CONTENT OBTAINED FROM THE SERVICES OR ITS USE, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TELEFONICA DIGITAL OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
YOU ARE THE ONLY RESPONSIBLE FOR BACKING-UP YOUR CLIENT OR ANY OTHER CONTENT THAT YOU USE WITH THE SERVICES. TELEFONICA DIGITAL IS NO RESPONSIBLE FOR ANY LOSS OF DATA.
YOU AGREE TO HOLD HARMLESS AND INDEMNIFY TELEFONICA DIGITAL, AND ITS SUBSIDIARIES, AFFILIATES (INCLUDING ANY ENTITY WITHIN TELEFONICA GROUP), OFFICERS, AGENTS, AND EMPLOYEES, ADVERTISERS OR PARTNERS, FROM AND AGAINST (I) ANY THIRD PARTY CLAIM ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES, CLIENT CONTENT, (II) ANY AND ALL DAMAGE AS A RESULT OF THE VIOLATION (BY YOU OR YOUR END USERS) OF THE APPLICABLE LAW OR THESE CONDITIONS, OR AS A RESULT OF ANY OTHER ACTIONS CONNECTED WITH USE OF THE SERVICES, OR AS A RESULT OF A BREACH OF A TERM OF THIS AGREEMENT RESULTING FROM YOUR END USER‘S USE OF THE SERVICES OR (III) ANY CLAIMS AGAINST TELEFONICA DIGITAL MADE BY ANY OF YOUR END USERS, (IV) ANY AND ALL DAMAGE AS A RESULT OF THE USE THE SERVICES WITH THIRD PARTY SERVICES OR PRODUCTS AND (IV) ANY AND ALL DAMAGE TO ANY EQUIPMENT BELONGING TO TELEFONICA DIGITAL OR THE TELEFONICA GROUP ENTITY CAUSED BY YOUR BREACH OR YOUR END’S USERS BREACH OF THIS AGREEMENT; INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS’ FEES, OF EVERY KIND AND NATURE. IN SUCH A CASE, TELEFONICA DIGITAL WILL PROVIDE THE CLIENT WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION.
X. PERSONAL DATA PROTECTION
10.1 Any Personal Data provided by You to Telefónica Digital under this Agreement shall only correspond to information strictly necessary for the compliance with this Agreement, and shall only and exclusively be applied or used to provide the Services.
10.2 Telefónica Digital warrants that it will process the Personal Data in compliance with all applicable data protection laws, enactments, regulations, orders, standards and other similar instruments.
To the extent it receives any Personal Data pursuant to this Agreement, Telefónica Digital shall be a data "processor" as defined in Article 2 of the Data Protection Directive. Telefónica Digital undertakes to process any Personal Data that is provided to it by You (or such Personal Data to which access is granted by You) originated in the European Economic Area only in the EEA or in a territory that has been designated by the European Commission as ensuring an adequate level of protection pursuant to Article 25(6) of the Data Protection Directive and always in accordance with Your instructions.
Where Personal Data originating in the European Economic Area is processed outside the European Economic Area or in a territory that has not been designated by the European Commission as ensuring an adequate level of protection pursuant to Article 25(6) of the Data Protection Directive, and before such processing happen, Telefónica Digital will provide You with the conditions applicable to the International Transfer Contract Clauses or similar agreements if applicable to guarantee adequate level of protection.
Notwithstanding paragraph above the parties are not required to enter into the applicable International Transfer Contract Clauses referred above where Telefónica Digital adhere to the Safe Harbor Privacy Principles and associated 15 Frequently Asked Questions, approved by the European Commission (Decision of 26th July 2000 (2000/520/EC))
10.3 As between the Parties, Personal Data will remain Your exclusive property. This ownership includes all elaborations, evaluations, segmentations or similar processes that Telefónica Digital may carry out in connection with the Services.
10.4 Telefónica Digital warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(i) take appropriate technical and organizational measures against the unauthorized or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(b) the nature of the data to be protected; and
(ii) take reasonable steps to ensure compliance with those measures.
10.5 Telefónica Digital may authorize a third party (sub-contractor) to process the Personal Data provided that the sub-contractor's contract:
(i) is on terms which are substantially the same as those set out in this Agreement;
(ii) includes an undertaking from the third party to comply with all instructions from Telefónica Digital or You and all applicable data protection laws;
(iii) includes a prohibition on the transfer of the Personal Data outside the EEA where Personal Data originating in the European Economic Area except otherwise agreed between You and Telefónica Digital.
(iv) terminates automatically on termination of this Agreement for any reason.
10.6 Upon completion of the Services that prompted the delivery of Personal Data to Telefónica Digital, Telefónica Digital will destroy the treated data and media or documents containing the relevant Personal Data, unless You, in each specific case, expressly authorize its retention on the grounds that it will be necessary for subsequent contractual engagements, or it is required under applicable laws. In some cases, Telefónica Digital may need to keep Personal Data so Telefónica can defend possible future legal claims. However, Telefónica Digital will still delete information that could not possibly be relevant to such a claim. In any case, Personal data will be deleted when such a claim could no longer arise.
10.7 You acknowledge that Telefónica Digital is reliant on You for direction as to the extent to which it is entitled to use and process the Personal Data. Consequently, Telefónica Digital shall not be liable for any claim (and You shall indemnify and hold Telefónica Digital harmless against any expenses, fines or other losses relating to such claim) brought by a data subject arising from any action or omission by Telefónica Digital, to the extent that such action or omission resulted directly from Telefónica Digital complying with Your instructions pursuant to this Agreement.
10.8 Obligations hereunder shall survive termination of this Agreement.
XI. ASSIGMENT, SUBCONTRACTING AND NOT RESELLING
11.1 You may not assign this Agreement or otherwise transfer any of its rights or obligations, including any credentials, the licenses or any other right, without the prior written consent of Telefónica Digital.
11.2 Telefónica Digital may, upon prior, written notice (including by email) to the Client and without Client’s consent, assign or otherwise transfer this Agreement to a third party, whether a member of the Telefónica Group or not.
11.3 Telefónica Digital may at any time subcontract part or all the Services or any of its obligations hereunder.
Each Party undertakes to treat as strictly private and confidential and not to disclose to third parties any information, data, news or document in any medium relating to the other Party which it obtains or receives as a result of entering into or performing the Services (the "Confidential Information"). Notwithstanding that confidentiality obligation and subject to any privacy data applicable law, and except otherwise agreed in the Agreement by You ,Telefónica Digital may be entitled to disclose Your Confidential Information to any company within Telefónica Group in order to provide the Services.
The undertaking set out in the paragraph above will not be deemed to be breached if information, news, data and/or documents relating to the other Party are already in the public domain when disclosed or the disclosure of such information by any Party is required by law or an authority orders the total or partial disclosure of the Confidential Information.
For the purposes of this Condition, Confidential Information also includes these Conditions, including the relevant consideration, Telefónica Digital System, any document, business offer, order or presentation given by Telefónica Digital to You, related to Our business partners’ technology, clients, business plan, promotional and marketing activities, finances and other business affairs.
The confidentiality obligations established herein shall survive termination of the Agreement and shall continue until any of the exception included in this Condition applies.
If any of the parties are required by statute, applicable law or regulation or by legal or regulatory authority, process or proceeding to disclose any Confidential Information, such party shall provide the other party with a reasonably adequate notice (if permitted by law, regulatory or the relevant authority) of such requirement so that the affected party may timely seek a protective order or other appropriate remedy or waive compliance with the terms of this section. The party required to disclose the information agree to cooperate with the other party in its efforts to so obtain such a protective order or other remedy. In the event that such protective order or other remedy is not obtained, the party required to disclose the information shall permit hereunder to furnish only that portion of the Confidential Information that it is advised by opinion of counsel it is legally required to disclose and shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
XIII. LEGISLATION AND APPLICABLE JURISDICTION
These Conditions and the Agreement and any issues or disputes of whatever nature arising out of or in any way relating to it or its formation (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation, or otherwise)shall be governed by the laws of England and Wales.
The parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
XIV. MISCELLANEUS PROVISIONS
- (i) To You.
Except as otherwise set forth herein, notices made by Us to You under this Agreement that affect the Clients generally (e.g., updated fees, updates services offers and description etc.) will be posted on the Telefónica Digital Portal. Notices made by Us under this Agreement for You specifically (e.g., notices of breach and/or suspension) will be provided to You via (a) the email address provided to Us in Your registration for the Services or in any updated email address You provide to Us in accordance with standard account information update procedures We may provide from time to time and/or (b) through any other mean We consider appropriated. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon Our sending of the email, whether or not You actually receive the email.
- (ii) To Us.
For notices made by You to Us under this Agreement and for questions regarding this Agreement or the Services, You may contact us through the Telefónica Digital Portal http://cloud.telefonica.com/instantservers/ at the Contact Us tab. Any support question or query related to the Services shall be made to the contact details described in Schedule II.
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise, distributor, dealer or agency relationship between You/Your End Users and Us (or any of Our affiliates or any Telefónica Group entity).
14.3 Entire Agreement
This Agreement incorporates by reference all policies, specific particular provisions and guidelines posted on the Portals, and constitutes the entire agreement between You and Us and supersedes all prior negotiations, representations, proposals, understandings and agreements whether written or oral relating to the subject matter of this Agreement.
Each of the parties acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. Nothing in this paragraph shall, however, operate to limit or exclude any liability for fraudulent misrepresentation.
14.4 Third Party Activities
Neither party shall be deemed in default or liable to the other party for any matter whatsoever for any delays in performance or from failure to perform or comply with the terms of this Agreement due to any cause beyond that party’s reasonable control including, without limitation, acts of God, acts of Government or other competent regulatory authority, telecommunications network operators, war or national emergency, riots, civil commotion, fire, explosion, flood, lightning, extremely severe weather, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce).
If any part of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remaining parts of this Agreement will remain in full force and effect. In such circumstances, the parties shall negotiate in good faith in order to agree the terms of a mutual satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision which is found to be invalid, illegal or unenforceable.
The failure or delay by either party to this Agreement to exercise or enforce any right, power or remedy under this Agreement shall not be deemed to operate as a waiver of any such right, power or remedy; nor shall any single or partial exercise by any party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.
14.7 Successors and Assigns
This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
14.8 No Third Party Rights
Except as otherwise explicitly set out in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. For the avoidance of doubt, Client affiliates shall have no rights to enforce any term of this Agreement.
All communications and notices to be made or given pursuant to this Agreement shall be in English language.
14.10 No Reselling
You will not be entitled to resell the Services to third parties or to authorize any third party to use the Services (except for the End User to be notified by You to Us at the time You contract the Services).
The Service consists in:
The core CORE PLATFORM (I.a), which provides virtual servers of several sizes (of RAM and disk space) and default software configurations (datasets), connected to the Internet, which You can be created, resized and deleted under a self-provision model, paying only for the used ones. The resources consumed will be billed to You monthly, as detailed in Schedule III.
A CAPI (CLOUD API) (I.b), which enables You to manage Your virtual servers programmatically and/or integrate the Services with third-party ones. This API and the needed tools to use it will be provided at no additional charge, including operation, support, patching and updates.
The Telefónica Digital SERVICES PORTAL (I.c), which enables You to manage Your virtual servers (as mentioned above). This Telefónica Digital Services Portal will be provided at no additional charge, including operation, support, patching and updates.
A HELP DESK (I.d) responsible of properly operate the Services and attend all the incidences and support requests issued by Clients, in the way detailed in Schedule II, at no additional charge.
DOCUMENTATION (I.e) for all the relevant topics regarding all the items listed above, at no additional charge. This includes all the needed changes and updates to keep the documentation synched with future Services changes and enhancements.
SERVICES LEVEL AGREEMENT
The applicable Services levels may be described also in the Telefónica Digital Cloud Services Portal. For the avoidance of doubt, in case of contradiction, the Services level described in this Schedule shall prevail.
In order to assure the level of quality of the Services, there are a number of indicators that Telefónica Digital, commits to fulfill. In case the Services level is not fulfilled, You may receive compensation from Telefónica Digital.
The overall SLA is composed of different concepts and metrics from the different Services elements. They can be grouped in:
- Availability times: they measure the percentage of time the element is up and running (described on section 2).
- Response time: time to respond to a given incident or request and measures the ability of the customer support organization to handle any request.
Capitalized terms used herein shall have the meaning set forth below, or in the Agreement, as applicable:
a) "Error" means an error in the Services which causes a material non-conformity of the Services with the specifications therefore set forth in Telefónica Digital's published documentation (the terms and conditions of the Agreement).
b) "Error Correction" means the use of reasonable commercial efforts to correct Errors.
c) "Fix" means the repair or replacement of object or executable code versions of the Services to remedy an Error.
d) "Workaround" means a change in the procedures followed or data supplied by Client to avoid an Error without substantially impairing Client’s use of the Services
2. How to calculate the Services Level Agreement (SLA).
The SLA’s are calculated on a monthly basis.
- Time period: Total hours of availability compromised during a period of time. At this time We have to subtract the times for preventive maintenance windows, or times of unavailability due to failures that are not responsibility of Telefónica Digital.
- Time out of service: Total hours of downtime during a period of time.
The value of the SLA is measured monthly as an aggregation of the individual SLAs, that is, in case of several services, the service availability time is calculated globally adding the availability times of all of them, the downtime of all of them and then, the percentage is calculated.
3. Applicable SLA's
The following SLAs are part of the system:
CAPI (I.b) Availability: percentage of the time that CAPI is available and giving access to the Client. The target value for the parameter is 99.95% monthly.
Core Platform (I.a) Availability: percentage of the time that a virtual server is up and running (the server status is available from the portal or from CAPI). The target value for the parameter is 99.95% monthly.
4. SLA Exclusions
Here are some of the exclusions (measurement conditions) to take into account as the Client and Services offered.
Excluded from the SLA agreement problems arising from software products outside support, those installed by a Client or any update done by a Client in one of the datasets provided by Telefónica Digital.
Also excluded from the calculation times to match the planned downtimes, windows of time that are programmed to carry out activities that will aim to maintain the agreed availability. The planned downtime will be predefined and will be notified as described at section 4.1.
False SLA breaches reported as a result of outages or errors of any Telefónica Digital measurement system; Client’s acts or omissions (or acts or omissions of others engaged or authorized by Client), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, Ruby, PHP, Python etc), any negligence, willful misconduct, or use of the Services in breach of the Agreement or Telefónica Digital’s instructions;
E-mail (SMTP, POP, IMAP) or webmail delivery fail and transmission;
Outages elsewhere on the Internet that hinder access to Your account
4.1 Excusable Time periods
Among these times excusable contains the following:
Unscheduled shutdown periods requested by the Client, usually associated to emergencies.
Attacks on unauthorized entry services, natural disasters, changes due to government actions, political or other regulatory actions, court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including Telefónica Digital and other providers), and other force majeure.
Installation of patches will be conditional upon the seriousness of the deficiencies to be covered.
We can set a monthly maintenance window of 6 hours. This window may overlap with the mentioned before.
Software versions or upgrades: be accompanied by a schedule of tasks.
Hardware upgrades: Upgrading hardware or will be subject to a planning provision to include downtime. Not be predicted beforehand.
Provision of additional customer requirements depend on Client needs. It may require or not to stop
Stops due to migrations. This will be evaluated independently to each case.
It will remain excluded from this calculation, service interruptions that may arise from causes attributable to the Client as well as those due to acts of force majeure or natural disasters.
- Any issue outside of the direct control of Telefónica Digital for instance, DNS (Domain Name Server)issues and in particular DNS propagation.
4.2 Maintenance and Task Scheduling
Downtime maintenance will be required scheduled and ad-hoc basis.
Telefónica Digital shall exercise commercially reasonable efforts to correct any Error reported by Client such Corrections shall be subject to the terms and conditions of this Agreement as described in section 6.
Client will be notified of scheduled downtimes at least 24hours prior to the maintenance.
5. Refund Request and Payment Procedures
To receive a refund due to an SLA breach, the Client must make a request by sending a message through the ticketing system. Each request in connection with this SLA must include the Client’s account number (per Telefónica Digital´s invoice) and the dates and times of the unavailability of Client’s element and must be received by Telefónica Digital within thirty (30) Business Days after the Client’s element was not available. If the unavailability is confirmed by Telefónica Digital, refunds will be applied within the next billing cycles after Telefónica Digital’s receipt of the Client’s refund request.
Notwithstanding anything to the contrary herein, the total amount credited to Client in a particular month under this SLA shall not exceed the total Fees paid by Client for such month for the affected Services. Credits are exclusive of any applicable taxes charged to Client or collected by Telefónica Digital and are Client's sole and exclusive remedy with respect to any failure or deficiency in the availability of the Services.
6. Service Penalties
Penalties apply only to Core Platform (I.a) Availability as previously described.
If the applicable SLA for the Core Platform is less than 99.95% monthly, Telefónica Digital will refund according the following table:
7. Severity Definitions
The incidents or requests can be grouped in the following categories:
Severity 1: Client's production use of the Services is stopped or so severely impacted that it cannot continue to operate, and the Client has experienced a complete loss of the production service. The operation is mission critical to the business and the situation is an emergency.
Severity 2: Client is experiencing a severe loss of Services. Important features are unavailable with no acceptable workaround; however, operations can continue in a restricted fashion.
Severity 3: Client is experiencing a minor loss of Services. The impact is an inconvenience, which may require a workaround to restore functionality
Severity 4: Client is requesting information, a product enhancement, or documentation clarification regarding Services.
8. Incident response and resolution times
In this Schedule 'Business Day' is defined as 09:00 to 17:00 in the local timezone where Telefónica Digital´s nodes from which the Services are deployed.
Incident response time: indicates the maximum time since the moment that the Client reports an incident, either by a call to the Client support center (as described below) or through the ticketing system of the support organization, until the incident is recorded in the database and the Client is informed and provided a tracking reference for further consultation.
Incident resolution time; time since the incident is reported to the Client support until it is fixed, or a workaround is provided.
"Resolution" does not necessarily mean the problem is completely resolved. SLA resolution times require that one or more of the following activities are complete:
- Temporary workaround/fix to restore the business Service
- Permanent fix (may be a result of root cause analysis of an issue)
- Issue escalated to vendor
- Action plan is created to address the trouble ticket.
9. Telefónica Support Offering
1. Technical support during support hours as specified for the level of support ordered.
2. Unlimited web access to Telefónica Digital Cloud Services Portal knowledge base, forums, wiki and other online tools.
3. Software Upgrades and Updates of the software provided directly by Telefónica Digital and not by a third party.
10. Support Response Times by Severity
Telefónica Digital will use commercially reasonable efforts to respond to Client-submitted issues per the above guidelines:
|Severity 1||See above||1 Hour, 24x7||4 Hours|
|Severity 2||See above||3 Hours Business Day||1 Business Day|
|Severity 3||See above||5 Hours Business Day||2 Business Days|
|Severity 4||See above||End of next Business Day||5 Business Days|
11. Scope of Support Services
a) Support Hours. Regular support hours are as defined BusinessDay.
b) Service Maintenance. From time to time, Telefónica Digital updates the Services. All such updates shall be subject to the terms and conditions of the Agreement.
c) Modifications of Software. Telefónica Digital may, in its sole discretion, accommodate requests for modifications, however, Telefónica Digital is under no obligation to incorporate those requests from Client in future releases of the Services, or to provide Support Services for such modifications.
d) Error Correction. Telefónica Digital shall exercise commercially reasonable efforts to correct any Error reported by Client such Corrections shall be subject to the terms and conditions of the Agreement.
e) Exclusions. As described in section 4 SLA Exclusions.
f) Changes. This Schedule may be updated from time-to-time and is subject to change at Telefónica Digital's discretion
12. Support Resources
All support requests may be submitted online through Telefónica Digital's web-based Client support systems or by email.
- Support form: https://my.instantservers.telefonica.com/support
- Technical documentation: http://docs.instantservers.telefonica.com
BILLING - PAYMENT TERMS
Billing of the Services shall be made by Telefónica Digital monthly based on the Services used by the Client on the previous calendar month in accordance with the reports to be issued by the billing Telefónica Digital System.
Telefónica Digital will invoice and send the invoice to You by email within the first 5 (five) Business Days of each calendar month.
The fees shall be paid through credit or debit card. The relevant fees shall be charged to Your credit card or debit card within the first 10 (ten) Business Days of each calendar month.
Telefónica Digital is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from Fees billed by Telefónica Digital.
You understand that:
Telefónica Digital invoices You the Fees applicable to the Services used in the previous calendar month.
In addition, Client understands the Telefónica Digital provides You, within the invoice, with an accurate summary of all the Service used in the previous calendar month.
As such, any payments processed are for Services already rendered and not subject to a refund
However, in the event You determine there is an error in the summary of the Services used or the fees charged for the Services used You may submit a billing dispute in writing to Telefónica Digital.
In order for billing disputes to be reviewed the dispute must be received no later than thirty (30) days from the date the error took place.
Telefónica Digital will review the dispute and make a determination whether or not there was a valid error with the system computing the usage or the usage Fees.
If the dispute is validated Telefónica Digital will credit the validated refund amount back to the payment mechanism associated with Your account.
Telefónica Digital’s records and data will be the sole basis for all refund credits. In the event You are not current in its payment obligations under this Agreement, refund credits will accrue, but will not be issued until You becomes current in its payment obligations.
Billing disputes should be submitted to https://my.instantservers.telefonica.com/support