MITS Hosting Services eContract - Service Terms

The Service Terms and Conditions in this section are called the General Hosting Service Terms and apply to all Hosting Services specified in Your Services & Summary Charges.

Actual Incidents Met means the total number of Incidents at a Severity Level that met the Incident Response Time standard during a calendar month, as recorded by the Hosting Service Desk;

Additional Service Terms and Conditions means the terms and conditions that apply to a specific Hosting Service and are in addition to the General Hosting Service Terms;

Application Software means a computer software program owned or licensed by the Customer and installed on the Hardware, but expressly excludes any TELUS Software;

Business Day means 9:00 a.m. to 5:00 p.m. Monday through Friday, excluding federal and provincial statutory holidays observed by us, in the time zone and province in which the Hosting Services are provisioned;

Change means a MAC or an amendment to the Agreement;

Customer Supplied Components or CSC means any hardware, software, and services necessary for use or used in conjunction with the Hosting Services that are not provided by us with the Hosting Services, and which may or may not be identified in the Solution Details;

Data means information in electronic form that is entered into, collected or manipulated by the Application Software, or hosted or stored on the Server or on the Application Software;

Database means an application used to store and manipulate data in a structured format;

Documentation means operating manuals and other materials relating to any Software, Application Software, or Hardware;

End User means a person authorized by the Customer to use the Hosting Service or to use the Application Software;

Excusable Downtown means the total number of hours in a month during which a Hosting Service is unavailable for use due to any one or more of the following:

a) a force majeure event;
b) any Maintenance Activities;
c) failure of the Service Components caused by the Customer or any other person for whom the Customer is responsible in law;
d) failure of your supplied components, outages or failures of any other services or components not provided or maintained by us that impacts the Hosting Services directly, indirectly or both;
e) your failure to add CSC when we have notified you that additional CSC is required to prevent the failure or degradation of the Hosting Services;
f) any other event or circumstance defined as Excusable Downtime in the Additional Service Terms and Conditions.

Hardware means the Server hardware, storage equipment, network components and other physical equipment or components listed in the Solution Details;

Hosting Services means the Services described in the General Description section;

Hosting Services Desk Service has the meaning set out in the Hosting Service Desk Service section;

Hosting Services General SLA means the Service Level Agreement set out in Hosting Services Service Levels;

IDC Facilities means physical space, power, other related facilities and security features described in the TELUS IDC and TELUS IDC Facilities section;

Incident means any defect, error, or failure of a Hosting Service that results in that Hosting Service not operating or performing in accordance with this Agreement;

Incident Response Time means the actual period of time from when a trouble ticket relating to an Incident is created by the Hosting Service Desk upon receipt of an Incident report from either you or our monitoring and management platform, until a technician is working on the Incident;

MAC means a routine move of, add or change to, or other activity involving the configuration of the CSC or the Service Components occurring in the course of day to day operations of the Hosting Services and that may result in T&M charges;

Maintenance Activities has the meaning set out in Service Maintenance section;

Monthly Service Charge means the fixed monthly recurring charge for the applicable Hosting Service, specified as such in Your Services & Summary Charges;

Operating System means the interface between the Hardware and the Application Software and/or Database that manages and coordinates activities and Hardware resource sharing identified in the Solution Details;

Server means a physical or virtual server listed in the Solution Details;

Server System means the Hardware, Operating System, and the TELUS Software, but expressly excludes any Application Software or other Software that is owned or licensed by you that may be installed on or used in connection with the Hardware;

Server Demarcation means the point defined in the applicable Additional Terms and Conditions as the limit of our responsibility for the specific Hosting Service;

Service Availability means the time the Hosting Service was actually available for use at the applicable TELUS IDC measured 7X24 including holidays in 30 day periods during the calendar month (“Uptime”), expressed as a percentage calculated using the following formula:

100 - (100 x Total Excusable Downtown / Total Possible Uptime)

(where maximum Service Availability is normalized to = [30 (days) X 24 (hours per day) X 60 (minutes per hour)] = 43,200 minutes per month and the total possible Uptime = (sum of all minutes during measurement period – Excusable Down time))

The element that the Service the Availability is measured on for a particular Hosting Service is specified in the Additional Services Terms and Conditions for that Hosting Service.

Service Level means a defined measure of the quality of the Hosting Services, using quantifiable specific performance indicators and standards;

Service Level Credit means a credit payable as liquidated damages for a Service Level Target failure subject to the terms and conditions set out in, and in an amount calculated in accordance with Service Level section;

Service Level Objective and Service Level Target each mean the minimum level of service that we expect to meet when measured against the standard for a performance indicator, and is usually expressed as a percentage;

Service Uptime means the total number of hours the Hosting Service is available for use in a calendar month up to the Service Demarcation, as measured by our monitoring tools;

Severity Level Software means the severity of an Incident based on the descriptions set out in Table 6 below.

Software means computer programs, regardless of format or medium, and related Documentation;

Solution Specification is a document that sets out details of the Hosting Services, is referred to in the Solution Details as “Attachment – Hosting and Storage Specifications”, and forms part of the Solution Details;

System Software means any TELUS-supplied Operating System, storage system maintenance and management Software, and virtualization Software, specified in the Solution Details and used in connection with a Server and the Hosting Services, but expressly excludes any Application Software or other Software owned or licensed by you and installed on or used in connection with the Hardware;

TELUS IDC means our regional Internet data centre (“TELUS Regional IDC”) or our intelligent Internet data centre (“TELUS intelligent IDC”) where the Hardware is installed and the Hosting Services are provided, and is specified in the Solution Details;

TELUS Software means Software listed in the Solution Details that is provided by us to you as part of the Hosting Services for use by you subject to the terms of any applicable Software license agreement, and includes the System Software and the Database Software;

T&M Charges Means charges billed on a time and material basis at our current rates and marked in the Solution Details as “T&M”;

Total Incidents means the total number of Incidents at a Severity Level during the calendar month, as recorded by the Service Desk;

All other capitalized expressions used in this section that are not defined in this section have the meanings set out elsewhere in this Agreement; and

Total Monthly Credit Percentage is set out in Table 4 below and in a related table in any applicable Additional Service Terms and Conditions.

Hosting Services provides you with one or more of the Hosting Services set out in Table 1 below, as specified in Your Services & Charges Summary.

Table 1

The specific terms and conditions for each Hosting Service are set out in Additional Service Terms and Conditions. The Hardware and number of Servers provided by us, the TELUS Software, the Customer Supplied Components and other components of the Hosting Services are specified in the Solution Details, together with the charges for the Hosting Services. Depending on the particular Hosting Service, the Hosting Services components may be provided and managed by you, by us, or by both.

We provide IDC Facilities at the TELUS IDC for each Hosting Service, including:

• Physical space and equipment racks
• Facilities management
• Air conditioning, including temperature and humidity levels control and monitoring
• Redundant, diverse and uninterruptible power
• Fire detection and zone-based suppression systems
• Alarm and monitoring system including a real-time video surveillance system of the physical environment
• On-site security staff 24/7/365
• Card key and/or biometric access including screening and pre-approval of all persons seeking entry to the TELUS IDC and control, distribution and maintenance of TELUS IDC access cards
• Security policy management
• Security administration, including distribution and control of the IDC access cards and related privileges and maintaining access lists and in/out logs of all persons entering and leaving the IDC
• Escorted access to authorized visitors, and restricted unescorted access, in accordance with our security policies.

We provide and uses the systems management tools and related consoles, hardware, and additional infrastructure required to administer and manage the Hosting Services.

We provide the Hosting Service Desk Service, which is a single point of contact for reporting and dealing with all Incidents related to the Hosting Services. We will triage all such reports and forward them to the appropriate TELUS support organizations. Access to the Hosting Service Desk Service is available 24/7/365, through a North America-wide toll free telephone number or through e-mail.

Table 2 below sets out the Hosting Service Desk Service details and related our and your responsibilities.

Table 2

As part of the Hosting Services, we provide redundant access from your hosting environment at the TELUS IDC to the Internet, and, when specified in the Solution Specifications, a VPN access through the Internet, to allow you to access, manage and monitor the CSC and other components not managed by us, as set out in the Additional Services Terms and Conditions. This Internet and VPN access includes hosting shared firewall protection and secure ID service. We will monitor and resolve any Internet and VPN access issues caused by fault, problem or performance at our network layer. Except where otherwise specified by us, email addresses, IP addresses and web page addresses assigned to you by us for Internet and VPN access remain our property at all times.

You are responsible for all Customer Supplied Components. The risk of loss of the CSC is with you, whether the CSC is on our or your premises. You grant us permission to perform a physical inspection of any CSC before the CSC is installed in a TELUS facility.

You are responsible for the supply, quality, condition, and content of all information, Customer-provided Data, Customer-provided Software and other material submitted to or placed on the Service Components or that the you store, transmit or receives through or use the Hosting Services (the “Customer’s Content”).We do not own the Customer’s Content and (a)are not responsible for, (b) do not monitor or censor, (c) exercise no control over, and (d) are not responsible for re-creating or re-transmitting, the Customer’s Content stored, transmitted or received through the use of Hosting Services. The Customer’s Content must be on media compatible with the Hosting Services and, where applicable, in the format prescribed by us.

You grant us a royalty-free, non-exclusive license to use, copy, distribute, transmit, edit, delete, publish and translate the Customer Content to the extent reasonably required by us to provide the Hosting Service or to enforce the terms of this Agreement. You represent and warrant that: (a)you have obtained any necessary consents, approval and authorization to enable the Customer Content to be copied, modified, run and accessed on Hardware under our or your control without infringing any other person’s rights; (b) in using the Customer’s Content to provide the Hosting Services, we will not infringe the rights of any other person; and (c) the disclosure to us or the use by us of the Customer’s Content will not breach any confidential or contractual relationship between you and any other person.

You shall comply with our acceptable use policy and IP address policy, published at https://www.telus.com/aup (“AUP”).We may change the AUP at any time, at its discretion. If you notify us that a change to the AUP results in you being in breach of the AUP, we will give you a reasonable period of time to cure the breach. We have the right to remove or deactivate any Customer-supplied Data that, in our opinion, may or does infringe any other person’s rights, or violates the AUP, or any law or order of a court or other lawful authority. We will notify you and give you an opportunity to remove or modify such Customer-supplied Data before we remove or deactivate it, unless we are prohibited by law or the order.

You are responsible for providing us with your representative’s contact and authorization details and any updates thereto (“Contact Information”) in a timely manner. Communication sent by us to you in accordance to such Contact Information is deemed to be received by you. In the absence of the Contact Information, we will proceed with the Maintenance Activity or other intended activity, as applicable.

For the purpose of the Hosting Services, either party may provide Software to the other. You shall subscribe for TELUS Software and shall pay for the type and number of licenses it uses. We have the right, at any time during the Minimum Term, to change the licensing method and charges if the TELUS Software supplier changes the same. If the supplier limits or discontinues support for the TELUS Software, you may either: (a) continue to use the software for the remainder of the Minimum Term, or (b) replace it with software supported by our supplier and pay the applicable license fee.

Except as may otherwise be provided for in any separate TELUS Software license or use agreement, you shall use TELUS Software in accordance with any accompanying Documentation and only in conjunction with the Hosting Services, and you shall not (a) assign, sub-license or distribute any right in the TELUS Software, (b) copy the TELUS Software, except for one copy for backup purposes, (c) transmit, decompile, reverse engineer or disassemble, tamper with, repair, modify, or create derivative works related to the TELUS Software; (d) copy or distribute any accompanying Documentation; or (e) remove any proprietary or copyright notices from the TELUS Software. The TELUS Software, including, for clarity, the configuration system software, and any copy or modification thereto is and will remain the sole property of ours or its Software suppliers. On termination of the Hosting Services, you shall return any TELUS Software and certify that any copies of TELUS Software have been destroyed.

We have the right, at any time during the Minimum Term, to audit, without advance notice, the number of licenses used, and to adjust the charges based on the audit results. If the audit discloses that you are in material default of any terms of use of the TELUS Software in this Agreement or in any separate license or use agreement, we may terminate the Hosting Services.

Except for the warranties expressly set out in any Documentation that may be provided with any TELUS Software, we make no warranties, representations or conditions of any nature, and all warranties, representations and conditions (including express or implied warranties or conditions of merchantable quality, durability, and fitness for a particular purpose) are excluded, to the extent permitted by law.

You are solely responsible for complying with all Application Software licenses, including restrictions on the portability of such licenses.

We may perform installation, support, maintenance, change or other activities with respect to the Services and Service Components ( “Maintenance Activities”): (a) in accordance with the schedule published at https://www.telus.com/hostingmaintenance, which is subject to change by us at any time, and (b) at other times, including for emergency maintenance or additional scheduled maintenance activities, as advised by us. We may give such advice orally and without any written notice.

When the Additional Terms and Conditions for a particular Hosting Service and/or Solution Specification refer to the performance of MACs, the details related to MACs types, chargeability, T&M Charges, submission and processing of MACs requests set out in the “Welcome to TELUS Hosting Services” document provided to you before signing this Agreement shall apply. By continuing to use the Hosting Service after a MAC is completed, you accept the MAC, and agree that our records of the Hosting Services as changed by the MAC are a complete and accurate record of the Hosting Services contracted by you. Any Change to the Hosting Service that is not a MAC requires an amendment to this Agreement.

Service Level Agreement Targets, Service Level Credits Credits and Service Level Objectives

We will make reasonable efforts to meet the Service Level Agreement Targets and Service Level Objectives set out in this Agreement. Failure to meet a Service Level Agreement Target is not a breach or default of the Agreement. If we fail to meet a Service Level Agreement Target or Service Level Objective and the failure was not caused or contributed to by any instance of the Excusable Downtime, we will investigate and make reasonable efforts to rectify the failure. If we fail to meet a Service Agreement Level Target, and if the failure was not caused or contributed to by any instance of the Excusable Downtime, we will provide you with a Service Level Credit, and the Service Level Credit is your only remedy for the failure. The Service Level Targets do not apply to, and Service Level Credits are not calculated for, any optional services or other TELUS services used in conjunction with the Hosting Service. Failure to meet a Service Level Objective will not result in any credit, refund of charges, or payment of any amount by us.

Hosting Service General Service Level Agreement

The Table 3 below sets out the Service Level Target that apply to a Hosting Service if the applicable Additional Service Terms and Conditions state that the “Hosting Service General Service Level Agreement applies”.

Table 3

Service Level Credit

After each calendar month over which we failed to meet the Service Level Target for Service Availability, we will, without a request from you, calculate the Service Level Credit as set out in Table 4 below by taking the difference between the actual results achieved for Service Availability in such month and the Service Level Target at the applicable TELUS IDC to determine Total Monthly Credit Percentage, and then using the formula:

Monthly Service Charge x Total Monthly Credit Percentage

Table 4

Unless otherwise specified in the applicable Additional Service Terms and Conditions, the total Service Level Credits payable to the Customer for any calendar month shall not exceed 50% of the Monthly Service Charge for the applicable Hosting Service.

Hosting Services General Service Level Objectives

Table 5 below sets out Service Level Objectives that apply to all Hosting Services.

Table 5

At the end of each calendar month, we will determine whether the Service Level Objectives for Incident Response Time have been met at each Severity Level, by calculating the actual results over the calendar month, expressed as a percentage, using the following formula:

(Actual Incidents Met) / (Total Incidents) x 100

Description of Severity Levels is set out in Table 6 below:

Table 6

The Minimum Term will commence when we notify you that all Hosting Services are available for use by you. Unless otherwise agreed, the Minimum Term for any Hosting Services added after the effective date of this Agreement will be co-terminus with the original Minimum Term.

General

Charges will apply for each Hosting Service beginning on the date we notify you that the Hosting Service is available for use by you, and charges will be pro-rated if a Hosting Service is not provisioned for a complete billing period. We will bill for any Change in the next bill after we notify you that the Change has been completed by us. The charges for any additional Hosting Service ordered by you will be the charges in effect when the additional Hosting Service is ordered. Time and Material Charges are billed monthly.

Internet Usage

You shall pay for the use of bandwidth on our network for all network traffic associated with use of the Internet access associated with the Hosting Services in accordance with a billing plan selected by you and specified in the Solution Specification ( “Custom Usage Plan”). Each Custom Usage Plan is based on either bandwidth usage, and identified in the Solution Specification as a “Bandwidth” usage plan”, or network usage, and identified in the Solution Details as a “Network” usage plan.

Bandwidth usage is measured and billed using the 95th percentile rule. Bit rates are sampled inbound and outbound at fixed points in time during a billing period. The top 5% of samples are discarded, and the highest measurement of the remaining samples becomes the billable amount of bandwidth.

Network usage is measured and billed based on the total Customer’s VPN or other Internet traffic associated with the Hosting Services sent or received on our network during the billing period.

Each Custom Usage Plan is also identified in the Solution Specification as either a (i) “Pre-Paid”, where a minimum pre-paid amount (for example, pre-paid 200GB) is charged and billed monthly, in advance, and any usage in excess of the pre-paid amount is billed in arrears, or (ii) “Default” where the actual usage is charged and billed monthly in arrears.

If a Custom Usage Plan is not specified, the default usage plan and charges set out in the Solution Specification (the “Default Usage Plan”) shall apply.

Standard Implementation Activities

The following activities (the “Standard Implementation Activities”) are included in the One-time Charges set out in the Solution Details:

i. commercially reasonable effort by an assigned Client Project Manager (the “CPM”) to establish timelines for service delivery and manage the implementation of the Hosting Services at the applicable TELUS IDC;
ii. kick-off meeting between the CPM and a designated Customer representative to review and confirm the contracted Hosting Services implementation deliverables and timelines; and
iii. coordination of required our resources until the time the contracted Hosting Services are delivered to you and deemed operational by us ( “Service Activation Date”), at which time the CPM will contact you to provide final details on accessing the Hosting Service(s) and confirm with you the Service Activation Date.

Standard Implementation Activities do not include:

i. preparation of a specific project charter, project plan or progress meetings (the “Enhanced Implementation Activities”). The Enhanced Implementation Activities are available and may be provided by us to you at an additional charge, pursuant to a statement of work entered into by the parties.
ii. Standard Implementation Activities specifically exclude time and effort to support or coordinate the following deployment, delivery or integration activities involving any:

1. CSC;
2. hardware and software provided by us in relation to other TELUS services, such as:

• dedicated network
• dedicated or managed security services
• compliance auditing services; or

3. migration of data, applications or other onboarding activities not specified herein.

Termination Charge

The termination charge payable by you for termination of any Hosting Services prior to the end of the Minimum Term is 50% of the total fixed monthly charges that would have been payable for such Hosting Services after the date of termination until the end of the Minimum Term. For clarity, the above calculation does not include charges specified as “variable charges” in the Solution Details and Solution Specification.