Version Date: March 1, 2017
1.Agreement and Acceptance. Thank you for selecting the BelugaCDN Content Delivery Network (“BelugaCDN”) caching service (the “Service”). This Service Level Agreement (“SLA”) is entered into by BelugaCDN and you (“Customer” or “you,” and, collectively with BelugaCDN, the “Parties”) effective as of the Effective Date (as defined below). Your use of the Service is subject to the terms of this SLA, and your purchase of the Service constitutes your acceptance of the terms of this SLA.
2.Service Description. The Service enables the Customer to distribute files using the HTTP or HTTPS protocol. These files will be origin hosted by Customer for access by the Service, and served by BelugaCDN's caching nodes to end users.
3.Grant of License. Subject to the terms of this SLA and during the Term (as defined below), BelugaCDN grants Customer a nonexclusive, nontransferable, nonsublicenseable, revocable license in the Service solely to use and access the Service to provide content and services to Customer’s end users. Customer may access the Service exclusively through the online control panel provided to Customer by BelugaCDN. BelugaCDN retains all rights, title and interest in and to the Service.
By way of clarification, the grant of license constitutes BelugaCDN’s permission to Customer to use the Service, but not to allow other individuals or companies to use the Service instead of the Customer. BelugaCDN can revoke Customer’s rights to the Service as described below.
4.Responsibilities of the Parties.
a. Customer Responsibilities.The Customer agrees to do the following during the Term:
1.Lawful Use Customer will only use BelugaCDN for hosting content which Customer either lawfully owns or validly licenses the right to distribute, and which is permitted to be distributed to endusers by applicable laws, rules and regulations.
2.DMCA Compliance Both BelugaCDN and Customer shall maintain procedures, policies, and designated agents necessary to comply with applicable safe harbors offered by the Digital Millennium Copyright Act of 1998, as amended (“DMCA”).
3.Compliance with Notices Customer agrees to reasonably respond to any notices received with respect to Customer’s content transmitted through the Service by promptly:
a.removing such content from transmission via the Service,
b.blocking access to such material from transmission via the Service, or
c.providing a written response explaining why such content is not required to be removed or blocked from transmission via the Service.
Customer acknowledges that BelugaCDN will remove or block access to Customer’s content if BelugaCDN receives a proper DMCA notice and Customer does not respond in a timely manner.
5.Denial Of Service Customer agrees not to use the Service to host abusive services which may or are reasonably likely to cause an outage to a third party.
6.Offensive Content Customer agrees not to use the Service to host content which is intended primarily to be offensive in nature.
7.No Death, Injury or Damage Customer may not use the Service in any situation where failure or fault of the Service could lead to death or serious bodily injury of any person, or to physical or environmental damage.
i.Restricted Access to Service. The Customer shall provide access to the Service only to authorized employees or contractors of Customer, and implement reasonable security measures to ensure that such employees and contractors comply with the terms of this SLA and all applicable laws, rules and regulations. Customer shall be solely responsible for use of the Service by any person to whom Customer has given access to the Service, and by any person who gains access to Customer’s content on the Service. Customer shall use commercially reasonable efforts to restrict access to the Service, and immediately notify BelugaCDN of any suspected or actual unauthorized use or access of the Service.
ii.Cooperation with BelugaCDN. The Customer shall cooperate with BelugaCDN in good faith in all respects in connection with this SLA. Such cooperation shall include providing BelugaCDN true and accurate information in connection with Customer when establishing an account for
the Service, and timely informing BelugaCDN of any updates to such information. Further, such cooperation shall include goodfaith efforts to resolve any issues which may arise relating to this SLA, including cooperating with BelugaCDN’s investigation of suspected breaches of this SLA, security issues, and outages.
Customer shall keep current billing and contact information on file with BelugaCDN and promptly notify BelugaCDN of any changes to such billing or contact information.
iii.Availability, Configuration of Customer Content and Systems. The Customer is solely responsible for the availability and configuration of Customer’s content and systems, including, by way of example, with respect to the following:
a.Availability of Customer’s origin server.
b.Configuration of BelugaCDN’s Service.
c.Accidental invalidation of cache by Customer.
d.Improper setup by or on behalf of Customer resulting in poor cacheability.
e.Improperly encoded Customer content.
iv.Coordination of Third Party Service. The Customer shall coordinate and address issues relating to services provided by third parties, including, by way of example, with respect to the following:
a.Fiber cuts on third party networks.
b.Packet loss beyond the first hop of the first third party network beyond BelugaCDN's network.
c.Failures within testing agents.
d.Failures within End User equipment.
e.Congestion within Last Mile ISP.
i.Provision of Service. BelugaCDN shall provide the Service to the Customer during the Term on the terms and conditions in this SLA. BelugaCDN may modify the Service from time to time in its discretion.
ii.Service Availability. The Service will be available 99.9% or more of the time during each month of the Term. If service is unavailable, BelugaCDN shall provide Customer with Credit (defined below) on the terms set forth below.
5.Service Charges. The Service charges shall be based on the payment plan selected by the Customer on BelugaCDN’s or its affiliate company’s website the (“Website”), which selection is incorporated into this SLA by this reference, or as otherwise may be agreed by BelugaCDN and
Customer in an order form for the Service (the “Order Form”), which Order Form is incorporated into this SLA and made a part hereof by this reference.
a.Billing Plan Types
i.FlatRate Packages– Customers who select one of BelugaCDN’s flatrate packages from the Website (each, a “Package”) are bound by the payment terms of each such Package as provided on the Website and this SLA. All Packages are offered on a monthtomonth basis. Package pricing is subject to change at BelugaCDN’s discretion upon 30 days’ notice to Customer.
Payment due under each Package shall be due on a monthly basis, prior to the start of each month of Service to be rendered.
ii.Volume Pricing – Customers who select volume pricing pursuant to an Order Form shall be bound by the terms of the Order Form and this SLA.
1.The volume pricing is offered on a tiered structure based on usage of GBs transferred, which will be calculated using 1,000,000,000 bytes as the definition of GB; TB = 1000 GB; and PB = 1000 TB.
2.The Order Form will specify an anticipated monthly usage amount agreed upon by the Parties for the duration of the applicable Term (the “Baseline Usage”).
3.Payment for Baseline Usage shall be due on a monthly basis during the Term, prior to the start of each month of the Service to be rendered, regardless of the actual usage during any given month during the Term.
4.No refunds or credits shall be issued by BelugaCDN to Customer for months where the Customer has not used all of the Baseline Usage.
5.At the beginning of every month, the total transfers will be reset to zero.
6.Customer shall pay BelugaCDN for any usage of the Service in excess of the Baseline Usage for any month during the Term based on the pricing set forth below, which payment shall be made by Customer concurrently with the next month’s Baseline Usage payment.
As of August 19, 2016, the tiered pricing is as follows:
i.$0.01/GB for all traffic
For example, if you transferred 200TB in a month, this would be calculated as (200,000 * 0.01)
7.Early termination is not permitted; Customer remains responsible for the Baseline Usage for each month of the Term indicated in the Order Form.
iii.Requests . All accounts are credited with 5000 requests per GB transferred. Additional requests are billed at $0.0035 per 10,000 requests.
iv.Charges. Customer agrees to pay all charges for Customer’s use of the Service at the then current BelugaCDN prices, which will be exclusive of any applicable taxes. Customer is responsible for paying all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Service, other than taxes based on BelugaCDN's net income.
v.Payment. Payment by Customer to BelugaCDN will be due by the date indicated on each invoice. BelugaCDN reserves the right to assess late fees for all payments not received within 10 days from the payment due date, which late fees shall be the lesser of 10% per month or the maximum amount allowable under applicable law.
Customer’s failure to fully pay any fees and taxes within 10 days after the applicable due date is a material breach of this SLA, justifying BelugaCDN in suspending its performance and terminating this SLA. If BelugaCDN terminates for your material breach, you must still pay past due fees plus interest.
Customer is responsible for any costs BelugaCDN incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. If you reinstate Service, you must pay any fees associated with reinstating Service.
b.Term and Termination –
i.Term. The term of this SLA shall commence on the date the “Effective Date,” which shall be the date Customer purchases a Plan on the Website, or BelugaCDN and Customer enter into an Order, and continue for 30 days or as otherwise specified in the Order Form (the “Initial Term”). This SLA will be automatically renewed for subsequent terms after the end of the Initial Term (each, a "Renewal Term" and collectively with the Initial Term, the “Term”) for the same period as the Initial Term, unless either Party provides the other Party with notice of termination at least seven days before the end of the Initial Term or any Renewal Term, as applicable.
ii.Termination. Notices of termination by Customer must be provided by creating a ticket inside the BelugaCDN control panel.
iii.If you terminate the Service before the end of the Initial Term or the Renewal Term, whichever is then applicable: (a) BelugaCDN will not refund to you any fees paid in
advance of termination, and (b) you will be required to pay 100% of BelugaCDN's standard monthly charge for each month remaining in the Term, unless otherwise expressly provided in this SLA. BelugaCDN may terminate this SLA at any time and for any reason by providing to you 30 days' prior written notice of termination. If BelugaCDN terminates this SLA, BelugaCDN will refund to you the pro rata portion of prepaid fees attributable to Service not yet rendered as of the termination date, unless otherwise expressly provided in this SLA.
v.Liability and Obligations on Termination.If the SLA expires or is terminated for any reason, BelugaCDN is not liable to you because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from the termination or expiration. If you terminate this SLA, BelugaCDN will not relieve you of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to BelugaCDN under this SLA.
vi. We reserve the right to suspend your service if you are intentionally abusing the platform and affecting other customers. You will be given advance notice and an acceptable amount of time to rectify the issue (unless you're causing an outage, then you'll be suspended immediately).
c.Billing Disputes– If Customer wishes to dispute an invoice issued by BelugaCDN for the Service, Customer must provide BelugaCDN notice of such dispute within 30 days of the date of the invoice. Thereafter, all rights to dispute an invoices are waived by Customer.
6.Service Availability. CDN service is determined to be "Unavailable" when test agents report a "Request timeout", "Connection refusal", or other similar error message. Timeout values shall be based on the average timeout values used by Firefox, Chrome, Safari, and Microsoft Internet Explorer. Unavailability is calculated based on the cumulative unavailability of the Service for a given calendar month. In the event the Service is available less than 99.9% of the time in any given month, Customer may be entitled to a credit (“Credit”) which can be applied to Customer’s next month’s invoice, subject to the terms and limitations set forth below:
a.Calculation of Credit. Credit will be calculated by multiplying:
i)your total amount due for the Service during the preceding month by
ii)the Credit percentage from the table below for which you qualify for the preceding month.
95% – 99.89%
94.9% and below
5% credit for each 1% of unavailability
up to a maximum of 100% Credit
In the event of partial or localized Unavailability (for example, if only requests to the Dallas location are impaired, while all other locations are operating at 99.9% or higher availability), the Credit will be prorated to the percentage of overall Customer traffic that the location experiencing the Unavailability serves on average in a month for the affected property. The
average monthly Customer traffic for any given location will be calculated by BelugaCDN based on its records.
b.Starting Time of Unavailability– For purposes of Credit calculation, Unavailability shall begin from the time the Customer opens a ticket with BelugaCDN support regarding the Unavailability.
c.Limitations BelugaCDN will not issue Credit under the circumstances described below.
i.Breach of SLA. Credit shall not be issued to Customer who is in breach of any of the provisions of the SLA, or who is subject to late charges under the SLA due to undisputed unpaid invoices at the time of the Unavailability.
ii.Disproportionate Traffic Events.Credits shall not be issued to Customer for unavailability during a Disproportionate Traffic Event (defined below).
Any time sample during which combined traffic for any customer exceeds two (2) times the lower of the current or prior month’s 95th Percentile Usage (as defined below) based on BelugaCDN’s internal calculations, shall be a “Disproportionate Traffic Event.”
1. The term “95th Percentile Usage” shall be defined as follows: During each calendar month, traffic samples will be
measured for each 1 minute time period. These samples will then be sorted from greatest to least, and the top 5% of all samples will be discarded. The remaining highest sample will set the 95th percentile for that month.
iii.Erroneous measurements.Credits shall not be issued in connection with erroneous measurements due to failures within testing agents.
iv.Customer or Third Party Fault.Credit shall not be issued for Unavailability caused by Customer or third party equipment, software or other technology (other than those which are under BelugaCDN’s direct control), action or inaction, including thirdparty issues described in Section 4(a)(iv) above, availability of Customer’s internet access, and failure of Customer or a third party to take reasonable action or action recommended by BelugaCDN to prevent the Unavailability.
v.Force Majeure Events.Credit shall not be issued for Unavailability caused by unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control BelugaCDN, including but not limited to disruption or unavailability of communication facilities, utility or Internet service provider failure, strikes, blockade, acts of war, revolutions or riots, acts of vandalism, terrorism, natural disasters, refusal or cancellation of applicable licenses by a governmental agency or imposition of stipulations or restrictions by governmental authorities,
insofar as such an event prevents BelugaCDN from performing the Service and BelugaCDN is not able to prevent or remove the force majeure at reasonable costs.
d.Measurement Tools BelugaCDN will maintain measurement tools to determine Unavailability.
e.Sole remedy Credit is Customer’s the sole and exclusive remedies for any Unavailability, interruptions, delays, downtime or any other servicerelated issues.
f.Request for Credit
i.Notification In the event of a qualifying Unavailability, Customer may request a Credit by opening a ticket with BelugaCDN’s billing department, and providing the location(s) and start and end time for the Unavailability, along with a report from the BelugaCDN’s measuring tool showing the Unavailability and providing the BelugaCDN ticket number for the ticket opened in connection with such Unavailability.
ii.Timing Customer must request a Credit for an Unavailability within 30 days of date of the invoice for the time period during which such Unavailability took place. Credit not requested within this time period is deemed waived.
7.Indemnification. Customer releases and holds harmless, and agrees to indemnify, BelugaCDN and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred by BelugaCDN or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this SLA, or any applicable policy or guideline; (b) your improper or illegal use of the Service; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or nonproprietary right of a third party (including defamation, libel, violation of privacy or publicity).
8.Limitation of Liability.
a.Limitations. IN NO EVENT WILL BelugaCDN OR ITS AFFILIATES OR SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER BelugaCDN NOR ITS AFFILIATES OR SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO BELUGACDN OBLIGATIONS UNDER THIS SLA, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BelugaCDN HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF BelugaCDN AND ITS AFFILIATES AND SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE UNAVAILABILITY CREDIT SET FORTH ABOVE.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY BelugaCDN UNDER THIS SLA HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE BelugaCDN AND ITS AFFILIATES AND SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED HEREIN.
b.Interruption of Service. BelugaCDN and its affiliates and suppliers are not liable for any temporary delay, outages or interruptions of the Service except as expressly provided hereunder. Further, BelugaCDN is not liable for any delay or failure to perform its obligations under this SLA, where the delay or failure results from, any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or thirdparty supplier failure).
9.Disclaimer or Representations and Warranties. BelugaCDN exercises no control over, and accepts no responsibility for, the content of the information passing through BelugaCDN’s host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS SLA ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE, INCLUDING ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SLA, BelugaCDN DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
a.Entire Agreement. This SLA, in conjunction with all Order Forms, policies and guidelines incorporated by reference, constitutes the entire agreement between you and BelugaCDN with respect to the subject matter of the SLA, and there are no representations, understandings or agreements that are not fully expressed in this SLA and the related policies and guidelines.
b.No Fiduciary Relationship; No ThirdParty Beneficiaries. BelugaCDN is not the agent, fiduciary, trustee or other representative of you. Except for the rights of BelugaCDN’s affiliates and suppliers set forth herein, nothing expressed or mentioned in or implied from this SLA is intended or will be construed to give to any person (other than the Parties) any legal or equitable right, remedy or claim under or with respect to this SLA. This SLA and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the Parties.
c.Amendments. Except as expressly provided in this SLA, no amendment, change, waiver, or discharge of this SLA is valid unless in writing and signed by the parties.
d.Identification. BelugaCDN may, free of any obligation to pay compensation, use your name and identify you as a BelugaCDN client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
e.Choice of Law and Forum. THIS SLA IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF NEW YORK, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS SLA MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN, MANHATTAN COUNTY, NEW YORK, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS.
f.Compliance With Laws.You will comply with all applicable laws and regulations and will indemnify and save BelugaCDN harmless from your failure to so comply. BelugaCDN will not have to perform any obligations set forth in this SLA if the performance would violate any present or future law, regulation or policy of any applicable government.
g.NonAssignment. You may not assign this SLA or any right or obligation under this SLA, by operation of law or otherwise, without BelugaCDN’s prior written consent. BelugaCDN may assign its rights and obligations under this SLA, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This SLA is binding upon, inures to the benefit of, and is enforceable against the Parties and their respective successors and assigns.
h.No Waiver. BelugaCDN’s failure to enforce the strict performance of any provision of this SLA does not constitute a waiver of BelugaCDN’s right to subsequently enforce the provision or any other provisions of this SLA.
i.Severability. If any term or provision of this SLA is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this SLA, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
j.Headings. The section headings used in this SLA are for reference and convenience only and will not enter into the interpretation of the SLA.
k.Survival. All provisions of this SLA relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the SLA.