TERMS AND CONDITIONS
- THESE TERMS AND CONDITIONS SHALL BE ARE LEGALLY BINDING FOR THE CUSTOMER UPON USING NITESCHOOL’S SERVICES.
- Terms of Service. Customer acknowledges and agrees to the following terms of service, which governs Customer's access and use of the Services (the 'Agreement'). Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 9 (Definitions) below. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement.
2.1. Customer Must Have Internet Access. DSL, cable or another high speed Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, "browser" and „viewer“ software that support protocols used by Niteschool, including Secure Socket Layer (SSL) protocol, Second Life Client protocols or other protocols accepted by Niteschool, and to follow logon procedures for services that support such protocols. Niteschool is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Niteschool. Niteschool assumes no responsibility for the reliability or performance of any connections as described in this Section.
2.2. Accuracy of Customer's Contact Information. Customer shall provide accurate, current and complete information on Customer's legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
2.3. Users: Passwords, Access, And Notification. Customer shall authorize access to and assign unique passwords and user names to the number of Users registered by Customer. User logins are for designated Users and cannot be shared or used by more than one User. Customer will be responsible for the confidentiality and use of User's passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer's account. Niteschool will act as though any Electronic Communications it receives under Customer's passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Niteschool of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User's password or name and/or Services.
2.4. Customer's Lawful Conduct. The Service allows Customer to send Electronic Communications directly to Niteschool and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Niteschool. Customer shall not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer's Electronic Communications are endorsed by Niteschool. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer's Affiliates. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Customer and Customer waives all of those defenses that Customer may have as to why Customer should not be liable for Customer's contractors', agents' or Affiliates' acts, omissions and noncompliance with this Agreement.
2.5. Third Party Web Sites, Products and Services. Niteschool may offer certain Third Party Applications for sale. Any purchase of such Third Party Applications by Customer shall be subject to the terms specified for that Service. In addition, Niteschool (through the Service) or certain third party providers may offer links to other websites, resources, Third Party Applications or services, including implementation, customization and other consulting services related to customers' use of the Service. Niteschool does not warrant any such Third Party Applications or services except as set forth by Niteschool, whether or not such Third Party Applications are designated by Niteschool as "certified," "approved", 'recommended' or otherwise, or the services are provided by a third party that is a member of a Niteschool partner program. Any purchase by Customer of any Third Party Applications or services is solely between Customer and the applicable third party provider.
Niteschool is not responsible for the availability or the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of such Third Party Applications or services that Customer may purchase or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications or services for use with the Service, Customer agrees that Niteschool may allow such third party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Service, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. Niteschool shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers. No purchase of such Third Party Applications or services is required to use the Service.
2.6. Transmission of Data. Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to use of the Service. Customer expressly consents to Niteschool's interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Niteschool. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Niteschool is not responsible for any Electronic Communications and/or Customer
Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Niteschool, including, but not limited to, the Internet and Customer's local network.
2.7. Service Level. During the Term, the Niteschool Service will meet the service level specified in the 'Service Level Commitment' listed on Schedule I hereto. In the event that Niteschool fails to achieve the applicable service level, Customer will be entitled, as its sole and exclusive remedy, to a credit in accordance with the terms set forth in the applicable Service Level Commitment. Niteschool's respective system logs and other records shall be used for calculating any service level events.
2.8. Niteschool's Support. As part of the Service, Niteschool provides Customer with an online knowledge nase and online help to assist Customer in its use of the Service. Niteschool also offers additional professional services consultation, and customer support services. Customer acknowledges that Niteschool has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Niteschool and/or not engaging Niteschool or other Niteschool authorized implementation partner in the provision of professional services may substantially limit Customer's ability to successfully utilize the Service or to enjoy the power and potential of the Service.
2.9. Security. Niteschool shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data.
2.10. Confidentiality. For purposes of this Agreement, 'Confidential Information' shall include the terms of this Agreement, Customer Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) aggregate statistical data regarding Niteschool products and services that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a 'need to know' basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
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2.12. Ownership of Customer Data. As between Niteschool and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Niteschool as part of its standard Service offering makes backup copies of the Customer Data in Customer's account and stores and maintains such data for a period of time consistent with Niteschool standard business processes, which period shall not be less than 3 months.
2.13. Niteschool Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by Niteschool or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Niteschool shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Niteschool. Niteschool service marks, logos and product and service names are marks of Niteschool. Customer agrees not to display or use the Niteschool Marks in any manner without Niteschool express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
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2.15. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
3.2. No Virus Warranty. Niteschool warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code ('Malicious Code'), except for any Malicious Code contained in Customer-uploaded data or otherwise originating from Customer.
- Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, NITESCHOOL DOES NOT REPRESENT THAT CUSTOMER'S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER'S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY NITESCHOOL. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.7, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN 'AS IS' AND 'AS AVAILABLE' BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER'S PURPOSES.
- Limitations of Liability. CUSTOMER AGREES THAT THE CONSIDERATION WHICH NITESCHOOL IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY NITESCHOOL OF THE RISK OF CUSTOMER'S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 5.
Except with regard to amounts due under this Agreement, and a party's breach of Section 2.10 (Confidential Information), the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 2.10 (Confidential Information) of this Terms of Service, such maximum liability of either party shall be an amount equal to three (3) times the equivalent of 12 months of subscription fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and that, were Niteschool to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER
PARTY'S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
6.1. Infringement. Niteschool shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively 'Claims') alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys'fees) (collectively, 'Losses') to the extent based upon such a Claim.
Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Niteschool notifies Customer to discontinue use because of an infringement claim, or (c) modifications to the Service or use of the Service in combination with any software, application or service made or provided other than by Niteschool.
If a Claim of infringement is brought or threatened, Niteschool shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state Niteschool's entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
6.2. Disclosure of Customer Data.
Niteschool shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any Claims that arise out of or result directly from Niteschools gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and shall hold Customer harmless from and against liability for any Losses to the extent based upon such a Claims.
When Niteschool is at fault but such fault does not rise to the level of gross negligence or willful misconduct, Niteschool shall, at its own expense and subject to the limitations set forth in this Section 6 and on the amount of liability set forth in Section 5 applicable in the event of a breach of Section 2.10, defend Customer from and against any Claims, and shall hold Customer harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to Niteschool's breach of Section 2.10 (Confidential Information) of this Terms of Service.
Provided that Niteschool complies with this Section 6.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fee paid for under the Agreement for the terminated portion of the Term.
6.3. Customer's Indemnity. Customer shall, at its own expense and subject to the limitations set forth in this Section 6, defend Niteschool from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than Niteschool Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer's breach of Section 2.4 (Customer's Lawful Conduct) or 2.10 (Confidential Information) above and shall hold Niteschool harmless from and against liability for any Losses to the extent based upon such a Claims.
6.4. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party's compliance with this Section 6.4 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1. Suspension for Delinquent Account. Niteschool reserves the right to suspend Customer's and any Customer Affiliates' access to and/or use of the Service for any accounts (i) for which any payment is due but unpaid but only after Niteschool has provided Customer two (2) delinquency notices, and at least twenty (20) days have passed since the transmission of the first notice ('Delinquent Account Status'), or (ii) for which Customer has not paid for the renewal term and has not notified Niteschool of its desire to renew the Service by the End Date of the then current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that Niteschool shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section 7.1.
7.2. Suspension for Ongoing Harm. Customer agrees that Niteschool may with reasonably contemporaneous notice to Customer suspend access to the Service if Niteschool reasonably concludes that Customer's Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer's Service is causing immediate, material and ongoing harm to Niteschool or others. In the extraordinary event that Niteschool suspends Customer's access to the Service, Niteschool will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. Customer further agrees that Niteschool shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section 7.2.
7.3. Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party.
Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) ('Notice'). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that Niteschool shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of a breach on Niteschool part, Niteschool shall refund the pro rata portion of any subscription fees paid by Customer to Niteschool under this Agreement for the terminated portion of the Term.
7.4. Handling of Customer Data In The Event Of Termination. Customer agrees that following termination of Customer's account and/or use of the Service, Niteschool may immediately deactivate Customer's account and shall be entitled to delete Customer's account and data after one week. Customer further agrees that Niteschool shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Niteschool is in compliance with the terms of this Section 7.4.
- Modification; Discontinuation of The Service.
8.1 To the Service. Niteschool may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Niteschool reserves the right to discontinue offering the Service at the conclusion of Customer's then current Term. Niteschool shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 8.1.
'Affiliates' means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
'Customer Data' means all electronic data or information submitted to the Service by Customer or its Affiliates.
'Electronic Communications' means any transfer of signs, signals, text, images, sounds, video, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
'Service' collectively, Niteschool online hosting services (the 'Niteschool Service'), including associated offline components, but excluding Third Party Applications and implementation services.
'Third Party Applications' means online, Web-based applications and offline software products that are provided by third parties, and interoperate with the Service.
'Users' means individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been registered, and who have been supplied user identifications and passwords by Customer (or by Niteschool at Customer's request). Users may include but are not limited to Customer's and Customer's Affiliates' employees, consultants, contractors and agents.
'User Guides' means the online user guides for the Service, accessible via login at http://www.niteschool.com.au as updated from time to time.
SERVICE LEVEL COMMITMENT FOR SUBSCRIBERS OF OPENSIM SERVICES
Service Level Commitment
Niteschool currently offers OpenSim Hosting Services with a „Best Effort“ service level.
Scheduled and Unscheduled Maintenance
Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each quarter. Niteschool hereby provides notice that every Saturday night 8:00pm - 8:30pm Pacific Time / 11am – 11:30am Central European Time is reserved for routine scheduled maintenance for use as needed.
Niteschool in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.
This Service Level Commitment may be amended by Niteschool in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your Niteschool account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Customer's account.
Exclusion of Testing Accounts
Testing accounts, services and other test environments are expressly excluded from this or any other service level commitment.