This clause appears to mislabel or conflate two distinct contract concepts. "SLA Availability Target" typically refers to uptime guarantees (e.g., "99.9% system availability"), which are operational performance metrics, not restrictive covenants. Restrictive covenants are promises that limit what a party can do—such as non-compete clauses, confidentiality obligations, or restrictions on asset use. If this clause genuinely combines both concepts, it may be attempting to restrict a party's ability to use competing services or systems unless the primary service provider meets a specified availability threshold. For example, a clause might state: "Client may not engage competing service providers unless the primary provider's availability falls below 99% in any calendar month." This hybrid structure is unusual and creates ambiguity about whether the restriction is conditional or absolute.
The clause matters because it could either: (1) create an unenforceable or overly broad non-compete restriction disguised as a performance metric, or (2) establish a legitimate conditional right to use alternatives if service fails. The categorization as "restrictive-covenants" suggests the drafter intended to limit the client's freedom to seek alternative services, which raises enforceability concerns in many jurisdictions.
Request immediate clarification from the other party about the clause's actual intent. If the clause is meant to be an SLA availability target (operational metric), it should be recategorized and moved to the service standards section with clear credit or termination remedies. If it's genuinely a restrictive covenant limiting your right to use competing services, negotiate to remove or significantly narrow it—such restrictions are disfavored in most jurisdictions and should only apply during the active term and be limited to direct competitors. At minimum, ensure any availability-based restriction includes a clear threshold (e.g., "Client may engage alternatives only if availability falls below 95% for 30 consecutive days") and an automatic sunset provision. Do not accept language that permanently restricts your service options based on vague performance standards.
Frequently Asked Questions
What does this clause mean in simple terms?
This clause appears to mislabel or conflate two distinct contract concepts.
Why should I care about this clause?
"SLA Availability Target" typically refers to uptime guarantees (e.g., "99.9% system availability"), which are operational performance metrics, not restrictive covenants.
What are my options?
Restrictive covenants are promises that limit what a party can do—such as non-compete clauses, confidentiality obligations, or restrictions on asset use.
How does this affect small businesses?
If this clause genuinely combines both concepts, it may be attempting to restrict a party's ability to use competing services or systems unless the primary service provider meets a specified availability threshold.