PHOENIX HOSTED IVR, CALL ROUTING & MANAGEMENT PLATFORM SERVICE LEVEL AGREEMENT (SLA)
This SLA applies to the Hosted IVR, Call Routing & Management Platform (“Platform” or “Service”) ordered by Phoenix’s Client (“Client”) pursuant to a signed Telecommunications Platform Services Agreement (“Agreement”) with Phoenix Communications Group, LLC (“Phoenix”). This SLA will apply exclusively to Client’s use of Platform. This SLA is effective as of the first day after initial installation of the Service. Platform Availability Goal: Phoenix‘s goal is to maintain Platform availability of 99.9%.
“Platform” refers to Phoenix Hosted IVR, Call Routing & Management servers and system that receive calls originated to Client, process those calls, direct outbound calls to configured destination(s), and provide web application(s) to sort data and create reports to manage call data and information. server and custom application hosted and managed by Phoenix. (If applicable) “Shared Application” refers to the Phoenix owned platform on which Phoenix agrees to host Client’s custom interactive voice response application with other Phoenix Clients. For purposes of determining Platform Downtime, the Platform will not include the circuits used to connect a caller to the Platform, the circuits used to connect a call between the Platform and the destination of an outbound call from the Platform (e.g. Client’s call center), or the circuits connecting the Platform to the Client.
PLATFORM AVAILABILITY MEASUREMENT AND REMEDIES
“Platform Downtime” is measured based on the total outage time incurred by Client. Platform Downtime will exist when the Hosted IVR, Call Routing & Management Platform is unable to process calls through a particular Client application for one toll free number (“Affected Service”) and Phoenix records such failure in the Phoenix trouble ticket system. Platform Downtime is measured from the time the trouble ticket is opened by Client to the time the Affected Service is again able to process calls. Upon Client’s written request to Phoenix made within five business days of the last day of the month in which the Platform Downtime occurred, Client will be entitled to a service credit equal to the pro-rated Eligible MRCs or Minutes of Use. “Eligible MRCs” refers to MRCs for platform services, Hosted IVR, Call Routing & Management Standard Platform Reports, use of a Shared Application and any custom application hosted and managed by Phoenix.
SERVICE CREDIT EXCEPTIONS
Service credits will not be available to Client in cases where the Services are unavailable as a result of:
(a) the acts or omissions of Client, its employees, Contractors or agents or its members, end—users, customers or any other third parties who utilize or access the Services;
(b) the failure or malfunction of equipment, applications or systems not owned or controlled by Phoenix,
(c) circumstances or causes beyond the control of Phoenix, including instances of a Force Majeure Event,
(d) planned outages caused by scheduled service maintenance, alteration, or implementation or
(e) the unavailability of required Client personnel, including as a result of failure to provide Phoenix with accurate, current contact information.
Such credits will be granted only if Client affords Phoenix full and free access to Client’s premises and equipment to make necessary repairs, maintenance, testing, etc.
MAXIMUM CREDITS AND TERMINATION OPTION
Under no circumstances will Phoenix be required to credit Client in any one calendar month for charges in excess of actual Platform Downtime. A credit will be applied only to the month in which the event giving rise to the credit occurred. Notwithstanding the foregoing, if in any single calendar month, either:
(a) Client would be eligible to receive credits for a particular Affected Service totaling twenty or more days of service resulting from three or more events during such calendar month;
(b) any single event entitling Client to credits for “Platform Availability” above exists for a period of eight days for a particular Affected Service,
then, Client may terminate the Affected Service for cause and without early termination charges by written notice to Phoenix within five business days following the end of such calendar month. Such termination will be effective 45 days after receipt of written notice by Phoenix. The provisions of this service level Agreement state Client’s sole and exclusive remedy for service interruptions or service deficiencies of any kind whatsoever for the Service.
MAINTENANCE WINDOW DEFINITION
Maintenance will be classified as one of the following two types:
1- “Normal Maintenance” will refer to upgrades of hardware or software or upgrades to increase capacity. Currently, Normal Maintenance will be undertaken on weekdays (Monday through Friday) between the hours of 11:00 p.m. and 5:00 a.m., local time for the equipment. Normal Maintenance will rarely require the entire scheduled maintenance window time. Phoenix will provide one day prior notice of Normal Maintenance. Notice will be given one day prior to Normal Maintenance. Normal Maintenance likely will not degrade the quality of the Service provided or cause an outage of the Service. Outages related to Normal Maintenance will not be deemed to be Platform Downtime. Phoenix may change the maintenance window times notice to Client.
2- “Urgent Maintenance” will refer to efforts to correct Platform conditions which are likely to cause a material Service outage and which require immediate correction. Urgent Maintenance, while being conducted, may degrade the quality of the Services provided, which may include an outage of the Services. An outage related to Urgent Maintenance will be deemed an outage for purposes of calculating Platform Downtime and Hosted IVR, Call Routing & Management Platform availability. Phoenix may undertake Urgent Maintenance at any time Phoenix deems necessary. Phoenix will provide notice of Urgent Maintenance to Client as soon as is commercially practicable under the circumstances.
TELECOMMUNICATIONS PLATFORM SERVICES AGREEMENT
CLIENT agrees to make payment within 24 days after receipt of each invoice submitted by Phoenix. If any charges are disputed, written notice must be provided to Phoenix within 3 days of receipt of said invoice and payment of all undisputed charges must be made by the due date. Payment shall be made to Phoenix Communications Group, LLC, 12214 SW 131 Avenue, Miami, FL 33186. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 12 percent per year, or the maximum percentage allowed under applicable laws, whichever is less. CLIENT shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if CLIENT fails to pay for the Services when due, Phoenix has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies.
Agreement may be terminated by either party upon 60 days prior written notice to the other party.
3. WORK PRODUCT OWNERSHIP.
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by Phoenix in connection with the Services will be the exclusive property of Phoenix. Upon request, CLIENT will execute all documents necessary to confirm or perfect the exclusive ownership of Phoenix to the Work Product.
Phoenix, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Phoenix, or divulge, disclose, or communicate in any manner, any information that is proprietary to CLIENT. Phoenix and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement. Upon termination of this Agreement, Phoenix will return to CLIENT all records, notes, documentation and other items that were used, created, or controlled by Phoenix during the term of this Agreement.
Phoenix shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Phoenix’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Phoenix on similar projects.
The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided as described in the relevant Attachment(s) to this Agreement.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
8. FORCE MAJEURE.
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
10. ENTIRE AGREEMENT.
This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This Agreement may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.
13. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State of Florida. Jurisdiction shall be Miami-Dade County.
Notice is considered given either
(i) when delivered by facsimile service or email service with duplicate notifications sent via U.S. Mail or overnight delivery with delivery confirmation or;
(ii) when delivered in person; or
(iii) after deposit in the United States mail envelope or container, either registered or certified mail, return receipt requested, postage prepaid, or via overnight courier service, addressed by name and address to the Party or person intended.
15. WAIVER OF AGREEMENTUAL RIGHT.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
Neither party may assign or transfer this Agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.