Acceptable Use Policy

This Uplink Service Supplement is effective on the last date of execution below (“Supplement Effective Date”) by and between Ecomdevel, LLC. (“Company”) and Customer and is attached to and made a part of the Master Products and Services Agreement, by and between the Parties. Unless otherwise defined herein, capitalized terms in this Supplement shall have the definitions attributed thereto in the General Terms and Conditions.

“Bandwidth” means the amount of bits per second transferred over the Company Network from and to Customer’s server(s);

“Burst” Bandwidth means the amount of Bandwidth in excess of Customer’s committed Bandwidth level as further defined in Section 7, below;

“Customer Location” refers to a location specified in an Order Form and connected by Company provisioned metro area network connectivity or Company provisioned in-building network connectivity whereby Customer connects to receive Uplink Service;

“Demarcation Point” means the termination point up to which Company is responsible to install the Company Network, as more fully described in Section 3.2;

“Uplink Service” means IP connectivity and Bandwidth provisioned by Company to Customer pursuant to an Order Form;

“Company Location” refers to a location specified in an Order Form and connected by Company provisioned connectivity whereby Company connects to the Company Network.

2.1 Uplink Service. Subject to the terms and conditions contained herein, Company will provision to Customer the Uplink Service pursuant to an Order Form providing Customer connectivity of its server(s) located at the Customer Location to the Company Network to enable the transfer of Bandwidth on terms specified in an Order Form. The Term shall be specified on each Order Form and shall begin on the Commencement Date specified therein.

2.2 Commencement Date. The Commencement Date for each Order Form is the date Company notifies Customer that Uplink Service is activated to Customer Demarcation Point. If activation is delayed as a result of Customer’s failure to obtain the necessary (i) CPE (defined in Section 3.1), (ii) In-Building Facilities (defined in Section 3.3) or (iii) Location License(s) (defined in Section 4.1), Company will give Customer written notice to cure such failure within five (5) calendar days. If Customer fails to cure within the five (5) calendar day period, Company may elect to (i) invoice Customer, which Customer agrees to pay, Company’s non-recurring and recurring costs that relate to the installation of Company Network to support the ordered Uplink Service, plus twenty (20%), reassign the Customer’s assigned ports at the Company Internet Service Exchange, and terminate the related Order Form.

3.1. Customer must procure and maintain, at its sole cost and expense, all necessary customer premise equipment or facilities (“CPE”), which are techically compatible to the Uplink Service and related Company Network.

3.2. Company or its agents will extend the Company Network to the Demarcation Point at each Customer Location. Unless otherwise specified in the Order Form, the Demarcation Point is a 10/100Mbps Fast Ethernet cable, 1000Mbps Copper or Fiber Gigabit cable, splice enclosure, or copper or fiber termination panel located (i) in the Customer’s co-location cabinet, (ii) in the basement or at the Company point of presence within a building, (iii) at the Company termination point within a central office, or (iiii) in the zero or last serving manhole serving a building for cases where Company does not gain access into such building.

3.3. Customer must procure, at its sole cost and expense, all necessary riser conduit, optical fiber strands, copper cable, switches, routers, hubs, and any other inside plant facilities (“In-Building Facilities”), within each Customer Location, to access and interconnect its own facilities with the Uplink Service. In the event that the Parties agree that Company will terminate the Company Network at a termination point beyond the Demarcation Point, Company will (i) perform a feasibility study (“Feasibility Study”), (ii) engineer and (iii) install the necessary In-Building Facilities (collectively (“In-Building Work”)), for at least Company’s actual costs plus twenty percent (20%), which shall be separately invoiced.

3.4. Company or its agents will perform all maintenance and repairs to the Company Network up to the Demarcation Point at no additional charge to Customer, unless such maintenance or repair is necessary as a result of Customer’s actions. Customer is not permitted to access the Company Network except at Customer’s side of the Demarcation Point as provided in this Agreement.

3.5. Company may subcontract all or part of its performance obligations (including maintenance and installation) to a third party without consent of Customer, and Company will remain liable for all such obligations.

4.1. Customer acknowledges and agrees that it is ultimately responsible to obtain and maintain, for the duration of the related Order Form Term any necessary third party licenses, approvals or permissions (“Location License(s)”) for Company to extend the Company Network to the Demarcation Point at the Customer Location and install and/or utilize the necessary inside plant facilities, including, without limitation, power, riser conduit, copper cabling, and fiber optics. Such Location License(s) must include access and distribution rights (if required) and installation, maintenance and retrieval of any Company Network. Alternatively, the Parties may agree that Company will arrange to obtain, on Customer’s behalf, all or a portion of the necessary Location License(s) in consideration for Customer paying Company a license fee (“Location License Fee”).

4.2. Customer agrees to pay any and all fees, recurring and/or non-recurring, (i) associated with obtaining and maintaining the rights specified in Section 4.1, above, and (ii) assessed by any building owner, landlord or other third party for the necessary license, approval and/or permission to install Company Network to or within (if applicable) a Customer Location.

5.1. Prior to the Commencement Date of Uplink Service, Company will obtain all material and applicable authorizations, leases, licenses, easements, rights of way, franchises, approvals, permits, orders, consents, and all other rights required for Company to operate and maintain the Company Network and provide the Uplink Service to Customer (collectively the “Authorizations”), and will use commercially reasonable efforts to maintain or renew all such Authorizations throughout the term of the Order Form. If any Authorizations are modified or terminated, threatening to cause or causing material financial harm to Company, or preventing or materially interfering with Company’s control, possession and/or use of the Company Network, then Company, may in sole discretion terminate this Agreement with respect to the affected Order Form without further obligation or liability to Customer. The foregoing is Company’s sole and exclusive liability and Customer’s sole and exclusive remedy with respect to termination as a result of the loss of an Authorization.

5.2. Company is providing the Uplink Service for Customer’s exclusive use. Customer shall have no right or interest in any of the Company’s network other than the right to use the Company’s network in connection with the Uplink service during the specified Term while Customer is not in breach hereunder.

5.3. Company may inspect Customer’s interconnection with the Uplink Service at any time without prior notice by Company.

5.4. Customer may not, without the express written consent of Company, perform, or contract with any third party to perform, any repairs or maintenance to the Company Network. Customer will not install any equipment to be used with the Uplink Service that damages or interferes with the Company Network or the Company’s customers.

5.5. If all or part of the Uplink Service or Company Network requires restoration, replacement or repair by reason of an act or omission of Customer, its employees, agents, or contractors, such repair, replacement and/or restoration may be made by Company, at Customer’s sole expense, in accordance with Company’s then current time and materials rates plus Applicable Taxes. In addition, Customer will not receive any Service Outage Credit (defined below) by reason of the foregoing.

6.1. Company guarantees to provide 100% network availability by continuous remote monitoring of the Company Network backbone. Customer may notify Company’s Client Service Center (“CSC”) of problems by telephone at (800) 561-2656, by the Company’s support ticket desk at http://support.gigenet.com, or by such other means as the Parties may agree. Provided that a Service Outage (defined below) is not attributed to a failure of Customer-provided equipment (“CPE”) or Customer-provided infrastructure, Company will respond and commence work within fifteen (15) minutes after notification or discovery of a Service Outage.

6.2. Service Outages. A “Service Outage” is defined as Packet Loss in excess of fifty percent (50%), based on Company’s measurements, or complete interruption of communications on the Uplink Network, provided it is not caused by or resulting from (i) Force Majeure; (ii) an act or omission of Customer, its employees, agents or contractors; (iii) the use or failure of any CPE or In-Building Facilities used in connection with the Uplink Service; or (iv) planned outages for maintenance or repair that are scheduled in advance by Company;

6.3. Service Outage Credit. Customer is entitled to a Service Outage credit (“Service Outage Credit”) equal to a percentage of their Monthly Service Charge as outlined in the following table, based on the total aggregate amount of Service Outages during the same calendar month:

Availability	Credit Percentage
99.999 to 100%	0%
99.9 to 99.999%	5%
98% to 99.8%	10%
95% to 97.9%	25%
90% to 94.9%	50%
89.9% or below	100%

The “Monthly Service Charge” is an amount equal to Customer’s total monthly recurring Uplink Service charges, but does not include incidental charges (i.e. Burst Bandwidth charges).

6.4. Customer Request Credit. Customer must notify Company in writing within five (5) business days from the time Customer becomes eligible to receive a credit. Failure to comply with this requirement will forfeit Customer’s right to receive a credit.

6.5. Limitation on Remedies. Company’s suspension or modification of Bandwidth in accordance with the terms of this Agreement shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement. The Service Outage Credit and Customer’s right to terminate under section 6.8 are Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for any failure by Company to provide Uplink Service or adequate service levels, including but not limited to any Service Outages or Company Network congestion, and under no circumstances shall a Service Outage be deemed a breach of this Agreement by Company. In no event shall Customer be entitled to any credit on its Bandwidth charges to the extent that the latency or Downtime is caused by Customer attempting to exceed the maximum bandwidth of Customer’s connection to the Company Network or otherwise violating the terms of this Agreement. Service Outage Credits will not be credited or payable for any period of time during which Company personnel or contractors are denied access to Customer Locations to remedy a Service Outage. Service Outage Credits will not be credited or payable for any period of time during which Customer does not make technically knowledgeable personnel available to work with the Company NOC to resolve issues.

6.6. All Service Outage Credits will be credited on the next recurring invoice for the affected Uplink Service after receipt of Customer’s request for credit. The aggregate maximum Service Outage Credit payable in a given calendar month shall not exceed the Monthly Recurring Charge for Bandwidth payable by Customer to Company for that same month for the affected Uplink Service.

6.7. Unless otherwise specified, if a Service Outage lasts longer than fifteen (15) days for any reason other than Force Majeure, then at any time thereafter, unless and until such Service Outage is corrected, either Party may terminate this Agreement with respect to the affected Uplink Service specified in an Order Form by written notice of termination delivered to the other Party.

6.8. In the event that Company dispatches personnel for a Uplink Service Outage or problems caused by Customer equipment or personnel, Company will invoice and Customer agrees to pay Company’s actual costs for time and travel associated with the dispatch.

Billing for Burst Bandwidth will follow the "95th percentile" rule: Usage samples will be collected and sorted from highest to lowest and the top 5% discarded. The next highest sample (the 95th percentile number) will then be used as the basis in computing the charge for the month for incremental Bandwidth beyond the committed level. Charges for Burst Bandwidth are recurring and will be billed after the end of the month.

Customer will be fully responsible for any charges resulting from Bandwidth use caused by Denial of Service attacks. Company may, at the request of the Customer, provide Denial of Service attack mitigation services, terms of which will be outlined on the Order Form. Customers undergoing Denial of Service attacks waive their right to Service Outage Credits for downtime caused directly or indirectly by Denial of Service attacks.

9.1 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by any government within whose jurisdiction Customer operates or does business.

9.2 No Resale. Customer may not resell the Uplink Service, including but not limited to the Bandwidth. For purposes of this Section, the provisioning of web-hosting or application service hosting on Customer’s equipment and/or ISP service is not considered reselling the Bandwidth. Customer hereby indemnifies Company against any harm or any claims arising out of acts or omissions of any customers of Customer or other third parties using Customer’s equipment or service that is the subject of this Agreement.

9.3. Acceptable Use; SPAM. Customer will at all times comply with and conform its use of the Service to the Company’s AUP, TOS, and Anti-SPAM Policy (collectively, the “Company Policies”) as set forth at the Company website, and updated from time to time, subject to notice to Customer of any material changes. In the event Customer violates the Company Policies where Company determines in its reasonable discretion that there is potential harm to its Network or business, Company shall have the right to immediately suspend Service. In other cases of violation of the Company Policies, Company will provide notice and opportunity to cure, to the extent Company deems reasonably appropriate, depending on the nature of the violation, the availability of the Customer and whether or not there has been a repeat violation. Company, in its reasonable discretion, shall re-enable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.

9.4. Illegal Use. Customer will cooperate in any investigation of Customer’s alleged illegal use of Company’s facilities or other networks accessed through the Company Network. If Customer fails to cooperate with any such investigation, Company may suspend Customer’s Service. Additionally, Company may modify or suspend Customer’s Service in the event of illegal use of the Company Network or as necessary to comply with any law or regulation, including the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512, as reasonably determined by Company.

9.5. Other Networks. Customer is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the Company Network and/or through other public and private networks. Company is not responsible or liable for performance or non-performance of such networks or their inter-connection points

9.6 Company Equipment. Customer shall have no right or interest in any Company-supplied equipment other than the right to use such equipment during the specified term while payments are current. Customer shall be liable to Company for any damage to such equipment caused by Customer or Customer’s representatives, agents or employees. Company shall not be liable for damage to, or loss of any of Customer equipment resulting from any cause, other than Company’s negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged equipment.