Master Service Level Agreement

This Master Service Level Agreement (“MSLA”) sets forth the terms and conditions by which Prosper will deliver certain services to Client named on a Service Order. Further terms and conditions are set forth within each individual service level agreement (“SLA”) and the Master Terms and Conditions (“MTC”). In the event of a conflict among the terms of any components of an Agreement, the following order of precedence shall control: an Agreement Addendum, the applicable SLA, the MSLA, the MTC, the Service Order and any other document made a part of the Agreement. Each applicable SLA together with this MSLA are collectively referred to herein as the “SLAs”.

General

The delivery of a Service is further defined by each applicable SLA.

Installation of Services

Upon receipt of a fully executed Service Order, Prosper will coordinate the installation or setup of the Service with the Client. If, due to limitation of the Client system or other server or application requirements, unforeseen configuration work is required, Prosper will promptly advise the Client of the anticipated additional work and associated costs. Client shall be responsible for all such additional expenses as are mutually agreed in writing by the parties.

Service Upgrades or Modifications

Unless otherwise provided in the applicable SLA, Prosper may replace or upgrade any Service at any time, including Prosper-provided Equipment, provided that no such upgrade will diminish or limit any SLA. Prosper shall implement each such upgrade during a Maintenance Window or pursuant to a timeline mutually agreed by the parties.

Authorized Contacts

Prosper will accept requests for Service configuration changes only from Client’s designated Technical Contact and may do so via email, phone, or chat. Client is responsible for ensuring that the contact information of its Technical Contacts and other Authorized Contacts are current and accurate. Client is responsible for providing a round-the-clock contact plan in the event of critical alerts or events after hours for applicable Services.

Service Desk

Prosper will staff the Service Desk with live technicians to receive and respond to Support Calls for Prosper Services Monday through Friday 8:00AM to 5:00PM CT (the “Normal Business Hours”). Prosper technicians will promptly respond to Support Calls, will open and update Trouble Tickets as appropriate, and will attempt to resolve the Incident by phone or by online troubleshooting using Remote Support where possible. Remote Support will require connectivity to the Device and may require a web browser.

Prosper Technical Support, in its sole discretion, shall attempt to assign to the Trouble Ticket the lowest level of technician capable of efficiently resolving the Incident. Assignment or escalation of the Trouble Ticket to a higher-level technician may be required by Prosper Technical Support due to factors such as, but not limited to, the urgency of the Trouble Ticket or technician availability.

Unless otherwise provided in a Service Order, work performed by the Service Desk for Support Calls during Normal Business Hours will incur, and Client agrees to pay, (i) an hourly fee at the then current hourly rates for Prosper Technical Support, (ii) shall include a minimum charge of one half (0.5) hour of billable time, (iii) and thereafter shall be chargeable to Client in one half (0.5)-hour increments.

Communications

Prosper Technical Support will accept phone calls, email messages, and chat sessions (each, a “Support Call”) from any Client representative reporting trouble or an outage of any Service or any related hardware or software Managed by Prosper (each, an “Incident”). Prosper will open a trouble ticket for each Incident described in each Support Call (a “Trouble Ticket”) and will record on such Trouble Ticket each step undertaken and each communication attempted or completed in furtherance of the resolution of the Incident.

Client may contact Prosper Technical Support through the chat and form submissions features of the Prosper website. Additionally, Client may contact Prosper Technical Support through the following contact methods.

Phone: 205.201.1985
Email: [email protected]

Upon resolution of an Incident, Prosper will send to Client a notice of Incident resolution and will close the Trouble Ticket. All communications between Prosper and Client will be in the English language.

Prioritization

The priority in which Prosper will address Trouble tickets is based on the priority level derived from the urgency and impact of the Incident (the “Incident Priority”).

After-Hours Support

Unless otherwise provided in a Service Order, Support Calls outside of Normal Business Hours will incur, and Client agrees to pay, in addition to all reasonable out-of-pocket expenses incurred by Prosper in the resolution of the Trouble Ticket, (i) an hourly fee at one and one half (1.5) times the then current hourly rates for Prosper Technical Support, (ii) shall include a minimum charge of one half (0.5) hour of billable time, (iii) and thereafter shall be chargeable to Client in one half (0.5)-hour increments.

Escalation to Hands-On Field Support

If Prosper Technical Support, in its sole discretion, determines that Remote Support is not possible or feasible for a reported Incident, including, without limitation, the occurrence of some event or circumstance that requires repair, modification, or replacement of any Client Equipment located at Client’s premises that is Managed by Prosper for Services, Prosper Technical Support will classify the Incident as a Hands-On Field Support Incident. Prosper technicians will notify a Client Technical Contact promptly upon the determination that an Incident will be classified as a Hands-On Field Support Incident (an “Escalation Notice”). Upon the Client Technical Contact’s receipt of an Escalation Notice, Client will have the right to request that all further troubleshooting or work on the Incident be halted and the Trouble Ticket be closed, without further charge, if any, to Client (a “Ticket Cancellation”). If Client does not notify Prosper of a Ticket Cancellation, Client assumes all responsibility for the fees associated with the escalation of the Support Call to Hands-On Field Support.

Hands-On Field Support

Prosper will use all commercially reasonable efforts to provide Hands-On Field Support twenty-four (24) hours per day; seven (7) days per week; three hundred sixty-five (365) days per year. The parties agree that all (a) engineering and design services; (b) carrier technologies; and (c) Client Equipment replacement, repair, or upgrade will be performed as Hands-On Field Support. Notwithstanding the foregoing, however, during any warranty period for Client Equipment, any repair (whether onsite at Client’s premises or otherwise) is the responsibility of the manufacturer, and Client will arrange for warranty support directly with the manufacturer unless the Client Equipment is Managed by Prosper. If requested by Client during a warranty period, however, even if the Client Equipment is not Managed by Prosper, Prosper may assign a Field Engineer to provide Hands-On Field Support, including arranging with the manufacturer for warranty support and testing the Client Equipment once support has been provided.

Prosper makes no warranty of response time for Incidents requiring Hands-On Field Support but will use all commercially reasonable efforts to provide a qualified Field Engineer for such purposes in a timely manner. Each Hands-On Field Support Incident shall include a minimum charge of one (1) hour of billable time, the timer of which shall initiate upon departure of the Field Engineer to Client’s premises, and thereafter shall be chargeable to Client in one half (0.5)-hour increments. Unless provided otherwise in a Service Order, no Hands-On Field Support is included with any Service. Hands-On Field Support is available at hourly, block, or emergency rates.

Unless Client has an account with adequate block hours to cover the billable time related to a Hands-On Field Support Trouble Ticket, Client agrees to pay Prosper’s then current hourly rate for Prosper Technical Support chargeable in one half(0.5)-hour increments. Client acknowledges and agrees that, in the event the resolution of an Incident requires Hands-On Field Support, Client will be responsible for on-site cooperative testing with Prosper Technical Support to assist in the diagnosis and correction of such incident.

Except as expressly set forth in the MTC, Hands-On Field Support services do not include any warranty or representation with respect to support and Prosper expressly disclaims any warranties related to hardware replacement, software replacement, programming assistance, project management, additional product features, or other components of Hands-On Field Support Services.

Configuration Changes

If expressly provided in the applicable SLA or Service Order, Prosper will provide Configuration Change Services as described in this Section. “Configuration Changes” include, without limitation (a) Internet protocol (IP) changes (e.g., routing, renumbering); (b) access modifications; and (c) account administration as reasonably necessary to support the optimal functionality of the Services. If Prosper determines that a Configuration Change should be performed as a Hands-On Field Service for which Client will incur additional charges, Prosper will not implement such Configuration Change unless Prosper first provides a verbal or written estimate of the cost associated with such work. Configuration Changes do not include engineering design services, carrier technologies, or Equipment replacement or upgrades, which will always incur additional charges. Configuration Changes are available only on Managed Devices located in a Prosper facility or Prosper Equipment deployed at Client’s premises that is Managed by Prosper. Prosper has the sole right to determine whether or not to implement any Configuration Change requested by Client.

Maintenance

Scheduled Maintenance

Prosper will use its best efforts to perform all Maintenance within the weekly Maintenance Window. Client understands and agrees that during the performance of Scheduled Maintenance, restore operations and Backup operations will not be available. With respect to all planned major changes that could cause disruptions in any services, not less than fourteen (14) days in advance of the applicable Maintenance Window, Prosper will provide notice of such changes to Client by email. Except as expressly provided in this Section, Prosper will not be required to provide Client with any notice of Scheduled Maintenance to be performed during a Maintenance Window. SLAs will not apply during any Scheduled Maintenance.

Emergency Maintenance

Prosper may perform Maintenance at times other than during a Maintenance Window or such time as is requested by Client if, but only if, Prosper has first determined in its commercially reasonable judgement that, in order to prevent a Material Adverse Effect, it would be unreasonable to defer or delay such Maintenance until the next regularly scheduled Maintenance Window (“Emergency Maintenance”). If feasible under the circumstances, Prosper will use commercially reasonable efforts to provide Client with twenty-four (24) hours’ prior written notice of the performance of Emergency Maintenance. SLAs will apply during any Emergency Maintenance.

Service Outages; Notices

Prosper will notify a Client Technical Contact by email or phone not less than fifteen (15) minutes after the start of a Service Outage. Client may designate one (1) additional Authorized Contact to receive phone and email notices of Service Outages. In providing any notices contemplated by this Section, Prosper may rely on the latest contact information in its records for Client Technical Contact or other Authorized Contact until such time as Prosper has actually received updated contact information from Client in writing. Prosper is not responsible for its inability to provide notice if Client has failed to provide current contact information.

General

Client may purchase or lease from Prosper the Equipment necessary to utilize the Services. Any such purchase or lease will be set forth in an Order.

Equipment Requirements

Required Equipment and Compatible Equipment

Prosper will identify the specific Equipment required for use with each Service (the “Required CE”) in either the respective Order or the applicable SLA. Prosper will provide Client a list of Equipment for purchase or lease that is compatible with the Required CE, provided that Prosper may modify such list of compatible Equipment at any time. Prosper agrees that it will support all Required CE acquired by Client and included on its list of compatible Equipment in accordance with this MSLA (“Supported Equipment”) and the Equipment Order.

End-of-Sale Equipment

Prosper reserves the right to classify previously Supported Equipment as “End-of-Sale”. When Prosper has classified previously Supported Equipment as End-of-Sale Equipment, Prosper will no longer sell or lease such Equipment to Client even if Client previously purchased identical previously Supported Equipment. Prosper will fully support End-of-Sale Equipment for not less than twelve (12) months following its classification of End-of-Sale.

End-of-Life Equipment

Prosper reserves the right to reclassify any End-of-Sale Equipment as End-of-Life Equipment at any time following the twelve (12) months after such Equipment had been first classified as End-of-Sale Equipment. When Prosper has reclassified End-of-Sale Equipment as End-of-Life Equipment, Prosper will no longer sell, lease, or support such Equipment. Prosper will give Client not less than sixty (60) days’ prior written notice of its intent to reclassify any Equipment as End-of-Life Equipment. If Client has Equipment that has been classified as End-of-Life Equipment Prosper reserves the right to upgrade to supported Equipment at Client’s expense in order to provide Service to Client. Prosper does not relinquish this right even if Equipment was sold to Client by Prosper.

Equipment Configuration

Client is responsible for all Client Equipment configuration changes requested or implemented by Client and not specifically outlined in this MSLA, any Service Order, or any SLA. Client is responsible for any Client Equipment modifications necessary to accommodate a Service.

Equipment Failure; Replacement

Unless a Vendor’s warranty applies or Client has purchased for Client Equipment a warranty, extended warranty, or other similar arrangement from Prosper, Client is responsible for and will cover the cost of any failure of Client Equipment. No such failure of Client Equipment will excuse Client’s performance under any SLA or Service Order.

Prosper is responsible for and will cover the cost of the maintenance or replacement of its Back-End Infrastructure hardware and components. In the event of a failure of such hardware or hardware components, Prosper will provide replacements from Prosper’s inventory, if available. If replacement hardware is not available in Prosper’s inventory, Prosper will arrange for replacement from the Vendor and Prosper will not be excused from any failure to meet SLAs by which Prosper is bound.

General

The Services will be subject to the SLA Goals set forth in this Section, and Client may be entitled to credits (“SLA Credits”) if Prosper fails to meet the applicable SLA Goals. Prosper understands and agrees that Client’s losses incurred as a result of Prosper’s noncompliance with certain SLA Goals would be difficult or impossible to calculate. Accordingly, the parties agree that SLA Credits are a reasonable estimate of damages for any such noncompliance and not a penalty. Client must at all times cooperate with Prosper in testing, determining, and verifying that a qualifying Service Outage or deterioration or degradation of Services has occurred. Prosper will initially determine, in its commercially reasonable discretion, whether a Service Outage has occurred and an SLA Credit is due to Client. Any dispute between Prosper and Client regarding whether a Service Outage has occurred or whether an SLA Credit is due to Client will be resolved in accordance with the dispute resolution provisions of the MTC.

SLA Credit Request Process and Limitations

In order to receive SLA Credits, a Client’s Technical Contact must immediately notify Prosper Technical Support of an Incident with a Prosper Service that results in a Service Outage or the interruption, deficiency, degradation, delay of, or other inability of Client to access the Service (collectively, a “Service Degradation”). A Service Outage or Service Degradation does not include Client’s inability to access such Services for any period during which Scheduled Maintenance is being performed.

Prosper Technical Support will open a Trouble Ticket, investigate the Incident, and inform Client whether the Incident is a Service Outage or Service Degradation for which Client may be entitled to an SLA Credit. Client may submit a written request to Prosper Technical Support not later than thirty (30) days following receipt of such notice to issue the SLA Credit. The appropriate SLA Credits will be reflected on Client’s bill for the Service within the next two (2) succeeding billing cycles.

In no calendar month shall the total service credits cumulatively exceed one hundred percent (100%) of the monthly recurring charge for such Service as reflected on Client’s monthly invoice from Prosper, excluding, in all cases: (a) all one-time charges; and (b) the monthly recurring charge attributable to Prosper Equipment for such Service. SLA Credits are exclusive of any applicable Taxes charged to the Client or collected by Prosper.

Global SLA Exclusions

SLA Goals will not apply with respect to, and Prosper will not be responsible for failure to meet, an SLA Goal resulting from the following:

1. Misconduct of Client or the Users of a Service;
2. Failure or deficient performance of electrical power, Client Equipment, or services or systems not provided by Prosper;
3. Delay solely caused or requested by Client;
4. Service Outages or Service Degradations due to any access lines, cabling, or equipment provided by third parties not under Prosper’s control;
5. Service Outages or Service Degradations during any period in which Prosper or its representatives are not afforded access to Client premises where access lines associated with Service are terminated or Prosper Equipment is located;
6. Service Outages or Service Degradations during any period when a hardware component required for a Service is removed from service for maintenance, replacement, or rearrangement purposes, or for the implementation of a Client Order, or by Client’s staff;
7. Contrary to Prosper’s recommendation, Client’s election not to release a hardware component required for a Service for testing or repair and, instead, to continue using the hardware component;
8. Force Majeure Events described in the MTC;
9. Client’s failure to provide a suitable secure environment for Client Equipment required for a Service, including, but not limited to, secure mounting and racking and appropriate cooling and air handling;
10. Service Outages or Service Degradations caused by Client Equipment, configuration, routing event, or technology not Managed by Prosper; and
11. Client’s failure to adhere to any material Prosper-recommended configurations on Client Equipment not Managed by Prosper.

In addition, SLA Credits will not apply: (i) if Client is entitled to other available credits, compensation, or remedies from Prosper under the applicable SLA for the same Service Outage or Service Degradation; (ii) to Service Outages or Service Degradations not reported or confirmed by Client Technical Contact to Prosper; (iii) where Client reports a Service Outage or Service Degradation, but Prosper after diligent, good faith effort cannot confirm such Service Outage or Service Degradation; and (iv) when (but only to the extent) the Service with respect to which a Service Outage or Service Degradation is reported depends on another Service that subjects Prosper to a less onerous SLA Goal.

If Client elects to use another provider or method to restore Service during the period of a Service Outage or Service Degradation, Client must pay the charges for such other provider for the alternative Service used.

SLA Classifications and SLA Goals

The following Service Availability and Service Performance SLA Goals and SLA Credits are applicable unless an SLA expressly makes them inapplicable to a Service. Other SLA Goals and any applicable SLA Credits tied to such SLA Goals are set forth in each SLA, if applicable.

Service Availability SLA Goals

“Service Availability” SLA Goals will apply only to Service Outages with respect to which a Service is completely unavailable. If Prosper Technical Support confirms that the Service is one hundred percent (100%) unavailable, the Service Outage will be categorized as a Service Availability Incident and all SLA Credits and other remedies applicable to Service Availability will apply. Any SLA Credits and remedies not specifically defined as associated with Service Availability will not apply to the applicable Service Availability Incident. Any dispute between Prosper and Client regarding the classification of a Service Outage as a Service Availability Incident will be resolved in accordance with the dispute resolution provisions of the MTC.

Service Performance SLA Goals

“Service Performance” SLA Goals will apply to Service Degradations. If Prosper Technical Support determines that the Service is available albeit with performance degradation, the Incident will be categorized as a Service Performance Incident and all SLA Credits and other remedies applicable to Service Performance will apply. Any SLA Credits or remedies not specifically defined as Service Performance Goals will not apply to the Incident. Service Performance SLA Credits will not be allowed more than once for any one specific Service Performance Incident. Any dispute between Prosper and Client regarding the classification of a Service Outage or Service Performance Incident will be resolved in accordance with the dispute resolution provisions of the MTC.

Other SLA Goals

The following SLA Goals, if applicable, and any corresponding SLA Credits, if any, apply whenever a specific SLA Goal specified in an SLA has not been met. Notwithstanding any provision in this MSLA, the MTC, or any SLA to the contrary, such SLA Credits are requested against the same Service Outage or Service Degradation.

Initial Incident Response

The “Initial Incident Response” SLA Goal will be measured from the time the Client places a Support Call to Prosper Technical Support to the time Prosper Technical Support responds with respect to the underlying Incident by either phone, email, or chat.

Incident Resolution / Service Repair Objective

The “Incident Resolution / Service Repair Objective” SLA Goal will be measured from the time the Client places a Support Call to Prosper Technical Support to the time the underlying Incident has been resolved or a suitable workaround is in place to restore the affected Service substantially to its normal performance.

Equipment Replacement

The “Equipment Replacement” SLA Goal is measured from the time the Client places a Support Call to Prosper Technical Support to the time the underlying Incident has been resolved or a suitable workaround is in place to restore the affected Service substantially to its normal performance. In the event of a failure of Equipment or components provided by Prosper, if any, the Equipment Replacement SLA Goal will be determined by the associated Incident Priority assigned by Prosper. If replacement of Equipment is not readily available from Prosper inventory, Equipment Replacement SLA Goal begins at the time Prosper takes possession of said replacement Equipment. For Client Equipment, Equipment Replacement SLA Goal starts at such time Prosper receives the replacement Equipment from Client or Vendor.

Monitoring

The “Monitoring” SLA Goal is measured from the time a Service Outage is detected by Prosper Monitoring systems until Prosper Technical Support reports such Service Outage to Client by phone or email. The Monitoring SLA Goal will be met when Client’s Technical Contact or other Authorized Contact is notified by phone call or email from Prosper Technical Support pursuant to the Notification Section of this MSLA. Receipt of the notification by Client or lack of receipt will not be considered to be part of SLA Monitoring Goal.

Capitalized terms not defined in this MSLA shall have the meaning set forth in the MTC.

Back-End Infrastructure means the hardware, Equipment, rack space, cabling, network switching and routing infrastructure, and software within Prosper facilities to provide the Services.

Backup means the archive or copied files and folders for the purposes of restoration in the event of data loss.

Device means any Client computer, server, printer, phone, or tablet used by Client to receive the Services Managed by Prosper.

Equipment means any computer, server, router, switch, firewall, and other components deployed to provide or enable the Service.

Field Engineer means a Prosper technical resource who provides Prosper Technical Support Services at a Client’s premises.

Hands-On Field Support means technical support provided by a Prosper Field Engineer at a Client’s premises in response to a request for Prosper Technical Support where the Incident cannot be resolved by Remote Support.

Impact means the degree to which an Incident is having an adverse effect on the Client organization.

Incident Priority means the priority assigned to a Trouble Ticket.

Maintenance means any activity performed by Prosper in connection with the deployment or installation of patches, updates, or revisions to any system, Service, Device, or Equipment that is used by Prosper to provide a Service.

Maintenance Window means the dedicated time in which Maintenance is performed, beginning each Friday at 9:00PM and ending each Saturday at 5:00AM CST.

Material Adverse Effect means a material adverse effect on the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects, of Prosper or Client.

Manage, Managed, Managing means Prosper assumes the responsibility for providing the defined set of services.

Monitor, Monitored, Monitoring means Service where Prosper monitors a Device, Equipment, or service based on alert thresholds.

Priority means the priority in which Prosper will address Trouble tickets based on the priority level derived from the urgency and impact of an Incident.

Remote Support means the troubleshooting and resolution of Incidents by means of remote access tools, phone, chat, or email where Hands-On Field Support is not required.

Service Level Agreement means a service contract component between Prosper and Client that provides specific and measurable aspects related to a Service offering.

Service Outage means a condition by which a Service is completely unavailable to a Client for at least fifteen (15) consecutive minutes due to the failure of a Device, system, network, or service that is Managed under the direct responsibility of Prosper and not during a Maintenance Window.

Scheduled Maintenance means any Maintenance or change performed or to be performed during a Maintenance Window. Scheduled Maintenance also includes any Maintenance to be performed by Prosper at Client’s request, whether or not performed during a Maintenance Window.

SLA Goals means the requirements, obligations, and standards Prosper sets with respect to the delivery of Service to Client.

Technical Contact means any person designated by Client to be a point of contact who may represent the Client in technical matters related to the use and configuration of Prosper Services.

User means an individual authorized by Client to utilize a Prosper Service.

Vendor means any third-party vendor, supplier, or manufacturer.