Legal


Level 3 third-party terms

THESE THIRD PARTY OFFERING TERMS AND CONDITIONS (THE “LEVEL 3 TPO AGREEMENT”,OR“LTA”) ARE A LEGAL AGREEMENT BETWEEN INSTART LOGIC, INC. (“RESELLER”) AND YOU OR THE LEGAL ENTITY (OR RELATED GROUP OF ENTITIES) THAT YOU REPRESENT (“YOU”, “YOUR” OR “CUSTOMER”), AND SETS FORTH THE TERMS AND CONDITIONS WITH RESPECT TO THE LEVEL 3 SERVICES YOU MAY HAVE PURCHASED THROUGH RESELLER (THE “LEVEL 3 SERVICE”).

YOUR USE OF THE LEVEL 3 SERVICE, OR ACCEPTANCE OF AN INSTART SERVICE ORDER DOCUMENT (THE “SERVICE ORDER”) IS YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS IN THIS LTA, AND YOU HEREBY REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY YOU REPRESENT TO SUCH TERMS AND CONDITIONS. 

THE TERM OF THIS LTA SHALL COMMENCE ON THE DATE SET FORTH IN THE SERVICE ORDER (THE “EFFECTIVE DATE”), AND SHALL CONTINUE AS INDICATED IN THE SERVICE ORDER.  YOU ACKNOLWEGDE THAT CERTAIN TERMS HEREIN ARE REQUIRED BY LEVEL 3, AND THAT YOU MAY NOT USE THE LEVEL 3 SERVICE UNLESS YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS LTA.  CAPITALIZED TERMS NOT DEFINED IN THIS LTA SHALL HAVE THE MEANING GIVEN THEM IN YOUR AGREEMENT WITH RESELLER.

Reseller and Customer may also be referred to individually as a “Party” or collectively as the “Parties” herein. 

1. Definitions. Unless otherwise specified, capitalized terms used in this LTA shall have the meanings set forth in Customer’s agreement with Reseller.    

2. Service Description. 

2.1 The Level 3 Service will be provided to Customer in accordance with the terms of the Service Order, including this LTA.    

2.2 Customer is solely responsible for any equipment, facilities and/or other materials used in connection with the Service which are not provided by Level 3, including any related applications, systems, and software (“Customer Equipment”).

3. Increased Costs or Contractual Changes.

3.1 Under the terms of Reseller’s agreement with Level 3, Level 3 is entitled in the event of changes in applicable law, regulations, rules or orders materially affecting delivery of the Level 3 Service (a) to require Reseller to negotiate contractual changes to its agreement with Level 3 (including price changes), and (b) to unilaterally impose increased delivery costs of the Level 3 Service on Reseller.  Customer hereby agrees that, in the event of (a) occurring, Customer will do all acts and execute all documents necessary to incorporate such contractual changes into a Service Order or LTA (including price changes); and in the event of (b) occurring, that subject to Section 3.2 below Reseller shall be entitled immediately to pass increased delivery costs imposed upon it by Reseller to Customer, and that Customer shall pay same in accordance with the terms of payment of fees set forth in the Service Order.

3.2 In the event of 3.1(b) occurring, Customer may terminate the Level 3 Services upon written notice to Reseller delivered not more than twenty-one (21) days after the date from which such increased delivery costs apply.  Notices under this Section 3.2 shall be delivered in accordance with the notice provisions of Customer’s agreement with Reseller.  Customer shall be and remain liable to pay for the Level 3 Services through the effective date of termination of the Level 3 Services.  The right of termination in this Section 3.2 shall not affect or apply to any other services provided under the Service Order or Customer’s agreement with Reseller.

3.3 Reseller shall be entitled to pass through to Customer, and Customer shall be liable for and pay in accordance with the payment terms of the Service Order, all taxes, fees, surcharges, license fees, foreign withholding (which will be grossed up) and other tax like charges imposed on or incident to the provision, sale or use of Service (“Taxes and Fees”), including any such Taxes and Fees (or costs of administering same) which Level 3 passes through to Reseller.  Customer further agrees that such Taxes and Fees may be invoiced later than and/or separately from the invoice for the Level 3 Service to which they relate.

4.  Service Levels.

4.1 The Service level commitments (“Service Levels”) for Services are set forth in this Section 4.  All Service credits which might become due under this Section 4 will be measured as against and calculated on the basis of the fees or charges due to Level 3 in relation to the relevant Services, not the fees or Charges due to Reseller

4.1.1 Maintenance of the Service may, but ordinarily will not, result in limited Service interruptions. Periods of force majeure and maintenance are “Excused Outages”. If Level 3 does not meet a Service Level (based on Level 3’s records) applicable service credits will be issued upon Customer’s request to Instart Customer Service. Credits must be requested within sixty (60) days after the event giving rise to the credit. Customer's sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels (if any).

4.1.2    The Service Levels apply where Customer orders Level 3® Caching and Download Service (“CachingService”), the Level 3® Streaming Content Delivery Service (“Streaming Service”), Level 3SM Intelligent Traffic Management Service (“ITM Service”), Level 3 SM Storage Service (“Storage Service”) or Level 3SM Encoding Service (“Encoding Service”). Each of the Services may be referred to as a “CDN Service” or collectively as “CDN Services”. Capitalized terms used herein but not otherwise defined shall have their respective meanings set forth in the Service Order or Customer’s agreement with Reseller. 

4.2 CDN Delivery Services.

4.2.1 Level 3’s CDN Delivery Services include the CDN Caching & Download and Streaming Services that are monitored through 3rd-party or Level 3 test-agents distributed globally across the Level 3 content delivery network. Each test-agent takes sample measurements every fifteen (15) minutes to calculate SLA’s, as more specifically set forth below.

(A) Availability (“Availability SLA”). A Level 3 CDN Service is determined to be “unavailable” when test-agents within a Region reports a ”request time-out”, “connection refusal”, “receive time-out” or other similar error message (“Unavailable” or “Unavailability”). Availability SLA is calculated based on the cumulative Unavailability of a Level 3 CDN Service within any geographic area such as North America (defined at Level’s discretion) where CDN Services are provided (each a “Region”) for a given calendar month. In the event a Level 3 fails to meet the Availability SLA for the applicable Region, Customer shall be entitled to a service credit off of the monthly recurring charge for the applicable Service, as set forth in the chart below:

For North America (NA) or European (EU) Region:

Availability SLAAvailabilityCredit Due
99.9% 95% – 99.89% 15%
90% – 94.9% 25%
89.9% and below 3% credit for each 1% of Unavailability

For Asia Pacific (not including China) (APAC), Middle East, Global Region (not including LATAM):

Availability SLAAvailabilityCredit Due
99% 95% – 98.9% 15%
90% – 94.9% 25%
89.9% and below 3% credit for each 1% of Unavailability

(B) Chronic Outage. Customer may elect to terminate without termination liability a Caching Service or Streaming Service prior to the end of the Service Term if such Service is Unavailable on three (3) or more separate occasions of three (3) or more consecutive hours each. Customer must exercise its right to terminate the Service, in writing to Reseller in accordance with the notice provisions of your agreement with Reseller, within twenty-one (21) days after the event giving rise to a right of termination.

4.3 Storage Service.

(A) Storage Access SLA. Level 3 measures Customer’s access to Storage Service (“Storage Access”) based on Customer uploading, viewing or deleting files stored within Customer’s designated content folders which reside on the Storage Service network. The Storage Access SLA provides that Storage Access is available 99.99% of the time during any given month. In the event Level 3 does not meet this SLA, Customer will be entitled to a service credit equal to either (i) charges for one (1) day of the allocated monthly recurring charge where a CDR applies, or (ii) charges for one (1) day of the applicable monthly usage charges absent any CDR, if any.

(B) File Loss. The File Loss SLA provides that Customers will not experience File Loss and therefore 100% of all content uploaded to the Storage Service will be preserved. “File Loss” shall refer to any data uploaded to the Storage Service that ceases to exist within such Service for any reason other than the result of Customer action or inaction (“File Loss”). In the event Customer experiences any File Loss within the Service in any calendar month, Customer will be entitled to a service credit equal to a percentage attributable to the File Loss based on either (i) the monthly recurring charge where a Committed Data Rate (“CDR”) applies, or (ii) the applicable monthly usage charges (absent any CDR), if any.

4.4 Encoding Service. Encoding Service is determined to be “Unavailable” if the encoder is unable to process the incoming video and audio signal to the applicable output form; provided, however, that if the encoder input is a video test or other signal from the broadcast chain (such as bars or black), then the Service shall not be deemed Unavailable. Unavailability is measured from the creation time stamp of a Level 3 trouble ticket until the “time to resolve” for that trouble case. Availability SLA is calculated based on the cumulative “unavailability” of the affected Service for a calendar month. The Encoding Service SLA provides that Encoding is available 99.9% of the time during any given month. In the event that Level 3 fails to meet the Availability SLA, Customer shall be entitled to a Service credit off of the monthly recurring charge for the applicable Service, as set forth in the chart below:

Availability SLAUnavailability (minutes:seconds)Credit Due off MRC
99.9% 0 – 43:00 N/A
43 :01 – 86 :00 30%
86 :01 – 130 :00 60%
130 :01 – 173 :00 90%
173 :01 and greater 100%

4.5  ITM Service.

(A) Service Availability. The Availability SLA provides that ITM Service will respond to DNS queries for hostnames under its resolution authority 99.999% of the time during any given month. In the event Level 3 does not meet this SLA, Customer will be entitled to a service credit equal to charges for one (1) day of the monthly recurring charge for such Service.

(B) Administrative Portal Availability. The ITM Administrative Portal Availability SLA provides that Customer’s access to the ITM Service portal will be available 99.99% of the time during any given month. In the event Level 3 does not meet this SLA, Customer will be entitled to a service credit equal to charges for one (1) day of the allocated monthly recurring charge for such Service.

(C) Chronic Outage. Customer may elect to terminate affected ITM Service prior to the end of the Service Term without termination liability if ITM Service does not respond to DNS queries for appropriately provisioned hostnames under its authority on three (3) or more separate occasions for 30 minutes or more each during any calendar month. Customer must exercise its right to terminate the Service, in writing to Reseller in accordance with the notice provisions of its agreement with Reseller, within twenty-one (21) days after the event giving rise to a right of termination. 

4.6 Limitations. Customer credits are not to exceed Customer’s monthly commitment to Level 3. Customer will not be entitled to receive any otherwise applicable service credit if the failure to achieve an applicable SLA results from (a) inaccessibility, erroneous measurements or non-responses attributable to the testing agents; (b) inaccessibility to any third party service or the third party’s service provider; (c) Customer Equipment or Customer action/inaction; or (d) an Excused Outage. Service Levels are not valid for customers with geographic restrictions on content delivery or in months in which a Disproportionate Peak (as defined below) occurs. Customer shall not be entitled to service credits under multiple SLA’s for a single event. Regions notwithstanding, Level 3 reserves the right to deliver content from anywhere on its content delivery network. The credits and any other remedies specified in this Section 4 set forth the sole and exclusive remedies of Customer for any interruptions or delays or other Service-related issues under this Service Schedule. 

4.6.1  Every five (5) minutes, the total outbound bytes of Customer content delivered from each Region is determined by Level 3 (each total being a “Sample”). At the end of each billing cycle, the Samples are sorted from highest to lowest. The highest 5% of the Sample are discarded, and the next highest remaining Sample will be set as the “95th Percentile Sample” for that Region and converted to Mbps. Any Sample greater than three (3) times the 95th Percentile Sample. Any Sample meeting such threshold is deemed a “Disproportionate Peak”.