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Negotiating a More Perfect SLA: Page 5 of 14

What carriers give in service levels, they often take away with exceptions and exclusions. A typical carrier SLA will have 10 to 20 exclusions stating when an outage isn't a capital-O outage and thus won't be factored into any availability calculations. Some of these exceptions are valid. For example, excluding outages caused by agreed "Force Majeure" conditions--events outside the reasonable control and expectation of a party--reflects common contract practice. Yet even this exclusion requires scrutiny. If Force Majeure includes acts or failures of third parties, those third parties shouldn't include the provider's contractors, suppliers, or agents.

Other exclusions are trickier. It may be appropriate to exclude outages caused by the customer from the availability measure, but should such outages be excluded from the Mean Time to Repair (MTTR) measure? Arguably, the carrier should make repairs promptly regardless of the cause.

Some exclusions are simply loopholes. A classic example is an exception for service interruptions owing to "emergency maintenance." Why should an outage resulting from emergency maintenance be treated any differently when the effect on the user is the same? The very need to perform emergency maintenance suggests a problem with the service.

One way to address exclusions is to eliminate egregious loopholes and limit the remaining ones. For example, say an availability or MTTR measure excludes all instances where the carrier can't gain access to a customer's facilities. Replace this all-or-nothing exclusion with a substitute provision that excludes from applicable measures (such as availability and MTTR) only the period when the carrier requires but can't get access to the premises to fix the problem.

For exclusions involving scheduled maintenance, negotiate a reasonable notice period and cap the time frame during which service can be affected. Scheduled maintenance shouldn't mean hours of outage time when the maintenance is botched.