CO-LOCATION SERVICES AGREEMENT C 226 (Terms & Conditions)

Transcription

1 CO-LOCATION SERVICES AGREEMENT C 226 (Terms & Conditions) RECITALS WHEREAS, Licensee desires that it be able to co-locate certain of its Licensee Equipment listed on the Co-Location Services Agreement, Addendum A, at ReachONE Internet premises, subject to the terms and conditions set forth herein; and WHEREAS, Licensor is willing to permit Licensee to co-locate such Licensee Equipment at such Premises, subject to the terms and conditions set forth herein; and WHEREAS, Licensor and Licensee have determined that this Co-location Agreement shall govern the terms and conditions of Licensee s co-location arrangement with Licensor, NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Licensor and Licensee, intending to be legally bound, covenant and agree as follows: AGREEMENT 1. Grant of License. Subject to the provisions of this Agreement, Licensor hereby grants to Licensee the right to locate, install, maintain and operate at the ReachONE Internet premises, as the same may be modified from time to time by mutual agreement of Licensor and such Licensee (the Premises ), certain telecommunications equipment as more fully described in Addendum A. 2. Acceptance of Premises. In each instance, Licensee accepts the Premises as is without any representation or warranty of Licensor with respect thereto, except that Licensor agrees that it will maintain the Premises such that the condition of the Premises does not deteriorate from the condition on the date of acceptance thereof by Licensee. Licensee agrees to use the Premises only for the purpose described in Section 1, above, and for no other purpose. Licensee further agrees to take all actions necessary, as directed by Licensor, to comply with the requirements of any applicable lease. Licensor agrees to provide reasonable environmental conditions similar in nature to the conditions Licensor provides for its own telecommunications equipment. In addition, Licensor agrees to the Service Level Warranty described on pages 6 and 7 of this document. 3. Interconnection; Power Supply. Licensor shall provide a DSX cross connect (interface) (the Demarcation Point ) at which point Licensee will interconnect its network with Licensee s network. Licensee shall provide the necessary interface cabling from Licensee s Equipment to the Demarcation Point. Licensor shall provide cabling from the Demarcation Point through the completion of the circuit on Licensor s network. Licensor s Internet connection shall consist of redundant access to Internet backbone via fiber optic provisioning. Licensor shall furnish electrical power, at Licensee s cost in accordance with the rate schedule in Exhibit B, attached hereto, necessary to meet the reasonable requirements of Licensee as provided herein. Licensor s power supply shall be provided on a dedicated UPS system with generator backup or the functional equivalent will be provided. Licensee will be responsible for providing at its own expense any filtering or other device necessary to eliminate any interference associated with such power supply. 4. Limitation and Reservation of Rights. No use of the Premises by Licensee or payment of any charges required under this Agreement shall create or vest in Licensee any easement or other ownership or property right of any nature. Nothing contained in this Agreement shall be construed (i) to limit Licensor s right to maintain and operate its own facilities as Licensor shall determine in its sole discretion, or (ii) to limit or restrict Licensor in any way with respect to any agreement or arrangement which Licensor has heretofore entered into, or may hereafter enter into, with any third party. 5. Compliance with Law. Licensee and Licensor shall at all times observe and comply with, and the provisions of this Agreement are subject to, all applicable laws, ordinances and regulations which in any manner affect the rights and obligations of Licensee and Licensor hereunder. Licensee shall further comply with the rules, regulations and policies of Licensor as they may be created and modified from time to time, and such rules, regulations and policies are expressly made a condition and term of this Agreement. 6. Term. This License shall be effective as of the date written on the Co-Location Service Agreement, Addendum A, and shall continue for a period of three (3) years from the date first above written (the Term ), unless earlier terminated by either Licensee or Licensor as hereinafter provided. The Term shall be automatically renewed for successive one (1) year periods, unless Licensee or Licensor provides written notice of nonrenewal no later than ninety (90) days prior to the end of the then current Term. 7. Installation Plans. Licensee shall be afforded access to the Premises for the purpose of preparing its installation plans. No later than four (4) weeks prior to the date proposed for installation of Licensee s Equipment, Licensee shall submit for Licensor s approval all engineering plans and specifications (VI, MMVIII) C 226 page 1 of 8

2 pertaining to Licensee s use of the Premises. Licensor shall respond with confirmation of Licensee s plans no later than ten (10) working days after receipt of such engineering plans and specifications. Such confirmation shall include space assignment, make-ready charges and a date when the space will be ready for installation of Licensee s Equipment. Unless Licensee objects to such charges, space assignment and preparation interval within five (5) working days of receipt of such confirmation, Licensor shall proceed with the make-ready work; and Licensee agrees to reimburse Licensor for the cost of such work within thirty (30) days after receipt of Licensor s invoice therefor. 8. Installation. Licensee shall engineer, furnish, install, and test, at its sole cost and expense, all of Licensee s Equipment. Licensee shall give Licensor ten (10) days notice prior to commencing installation, and installation and testing shall at all times be under the direct supervision of an authorized employee or agent of Licensor (the Escort ). All of Licensee s Equipment shall be clearly labeled as such, and Licensee shall be responsible for removal of all installation material and clean up of the Premises after completion of installation. Licensee s Equipment shall, at all times, remain the property of Licensee. 9. Maintenance. Licensee shall, at its own expense, maintain Licensee s Equipment in a safe condition in compliance with Licensor s reasonable requirements and in a manner that will not physically or electrically interfere with facilities of Licensor or any other person located on the Premises, including other licensees of Licensor. 10. Access to Premises. Licensee shall notify Licensor 24 hours prior to any repair or routine maintenance of Licensee s Equipment, except in cases of emergency due to failures or malfunctions of Licensee s Equipment, in which case Licensee shall give advance notice as described in paragraph 11 of this Agreement. Access for routine maintenance will be limited to the hours of 8:00 a.m. to 5:00 p.m. Monday through Friday, holidays excluded ( Business Hours ). Service-affecting routine maintenance may be performed outside of Business Hours upon 8 hours advance notice to Licensor. Licensee s employees, agents or contractors may enter or work in the Premises only when an Escort is present; and Licensee agrees to pay the charges for Escort services set forth in Exhibit B. Licensor shall endeavor to make Escorts available on a 24-hour per day, 7 days per week basis, and shall provide site-specific contact telephone numbers to Licensee. The Escort shall have the authority, without subjecting Licensor to any liability, to suspend Licensee s work operations in and around the Premises if, in the sole discretion of the Escort, any hazardous conditions arise or any unsafe practices (including practices that may threaten the integrity of Licensor s facilities) are being followed by Licensee s employees, agents or contractors. All of Licensee s work on the Premises shall be performed in a safe and workmanlike manner, and the presence of an Escort shall not relieve Licensee of such duty. If card access to the Premises is available, the parties will agree in writing to adopt appropriate and convenient access procedures for both routine and emergency situations. 11. Emergencies. In the event of any emergency (i.e., an event that is either service affecting or will immediately become service affecting) involving Licensor s equipment or operations, Licensor s work shall take precedence over any and all operations of Licensee on the Premises; and Licensor may rearrange Licensee s Equipment (with the same care used by Licensor in rearranging its own equipment) as reasonably necessary to respond to the emergency. In the event of any emergency involving Licensee s Equipment, Licensor shall notify Licensee prior to performing whatever repair and maintenance is necessary to respond to the emergency; provided that Licensee is thereafter given notice of such rearrangement and indemnified by Licensor for any damage to Licensee s Equipment resulting from such rearrangement by Licensor. Licensor shall use its best efforts to provide an Escort for such emergencies within two (2) hours of such notice during Business Hours and within four (4) hours of such notice at any other time. 12. Licensor Inspection and Remedial Rights. Licensor may make periodic inspections of any part of Licensee s Equipment upon reasonable advance notice to Licensee of such inspections, and Licensee shall have the right to be represented during such inspections; provided, however, if in the sole judgment of Licensor, safety considerations require an inspection without the delay of providing notice, Licensor may make such inspection immediately but shall provide notice of the inspection to Licensee. The making of periodic inspections or the failure to do so shall not operate to impose upon Licensor any liability of any kind whatsoever nor relieve Licensee of any responsibility, obligations or liability assumed under this Agreement. If any part of Licensee s Equipment is not placed and maintained in accordance with the terms and conditions hereof and applicable rules and regulations of Licensor and Licensee has not corrected the violation within ten (10) days after receipt of notice thereof from Licensor, then Licensor may, at its option, terminate this Agreement or correct said condition at Licensee s expense. However, in the event such condition poses an immediate threat to the safety of Licensor s employees or the public, interferes with the performance of Licensor s service obligations, or poses an immediate threat to the physical integrity of Licensor s facilities, Licensor may perform such work and/or take such action that it deems reasonably necessary without first giving notice to Licensee and without subjecting itself to any liability for damage to Licensee s Equipment or for any interruption of Licensee s services, except for liability arising from Licensor s negligence or willful misconduct. As soon as practicable thereafter, Licensor will advise Licensee in writing of the work performed or the action taken. Licensee shall be responsible for all reasonable expenses incurred by Licensor associated with any such work or action performed by Licensor and shall reimburse Licensor within thirty (30) days from its receipt of Licensor s invoice therefor. 13. License Fees. In consideration of the license granted herein, Licensee shall pay Licensor the applicable recurring (VI, MMVIII) C 226 page 2 of 8

3 and non-recurring charges, including charges for utility services provided by Licensor, set forth in Exhibit B. All such charges shall be invoiced monthly by Licensor and shall be due and payable within thirty (30) days of the invoice date. Invoiced amounts that remain unpaid for a period of ten (10) days after written notice of delinquency shall bear interest at the lesser of 18% per annum or the maximum rate allowable by law. All charges hereunder are exclusive of any applicable sales, use, excise and like taxes which will be separately stated on each invoice. 14. Other Charges. All other charges, such as technical services purchased by Licensee at the rates set forth in Exhibit B, shall be paid by Licensee within thirty (30) days of receipt of Licensor s invoice and shall be subject to the late payment and tax payment provisions of Section 13, above. 15. Preferred Provider. Licensee agrees to purchase from Licensor all telecommunications services connecting into Licensee s Equipment that is installed on the Premises; provided that (i) the charges for such services must be equal to or less than the charges of other providers of the same services, and (ii) the timing of delivery of such services shall be no later than delivery obtainable from other providers of the same or similar services. Licensor may place orders for such services, and Licensee will provision such services, on the terms and conditions of Licensor s then current standard Telecommunications Service Agreement. In the event Licensor is unwilling or unable to provide the services requested by Licensee, Licensee may purchase the services from another provider; provided, however, Licensee shall pay Licensor a cross-connect fee in accordance with the rates set forth in Exhibit B for each services obtained from another provider. 16. Events of Default; Termination. Any of the following events shall constitute a default: a. Failure of Licensee to pay when due any amount owed to Licensor or to perform any of the other covenants or conditions contained in this Agreement, and such failure continues for ten (10) days after receipt of written notice by Licensor; or b. Material breach by Licensor or Licensee of this Agreement, after notice of such breach and failure of the breaching party to cure such breach within thirty (30) days of receipt of such notice; or c. The filing of bankruptcy by either Licensor or Licensee under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver or any act or action constituting a general assignment by either Licensor or Licensee of its properties and interest for the benefi t of its creditors; d. A material adverse change in the quality of service available from Licensor s facilities serving the Premises which is not remedied within thirty (30) days after written notice from Licensee. e. Any ground for termination specified in Exhibit C. Subject to the following sentence, in the event of a default by Licensor or Licensee, the aggrieved party may terminate this Agreement or exercise any other rights or remedies which may be available at law or in equity; and the defaulting party shall reimburse the aggrieved party for all reasonable expenses (including court costs and reasonable attorneys fees) incurred in connection with pursuit of any such remedy. 17. Early Termination. Licensee may terminate this Agreement with respect to any location included in Exhibit A at any time by giving thirty (30) days written notice to Licensor. In the event of termination by Licensee prior to expiration of the Term pursuant to the preceding sentence, Licensee shall be liable to pay Licensor a termination fee equal to three (3) months recurring charges for each Premises with respect to which Licensee provides such notice plus relevant Escort charges and other direct costs incurred by Licensor in connection with removal of Licensee s Equipment. Licensee acknowledges and agrees that such termination fee is liquidated damages for damages to Licensor which is difficult to determine with certainty, and is not a penalty. Licensor shall not arbitrarily or discriminatorily require Licensee to relocate Licensee s Equipment. Licensor reserves the right, however, upon ninety (90) days prior written notice or, in the event of an emergency, such time as may be reasonable, to change the location of Licensee s Equipment to a site which shall afford comparable environmental conditions for and accessibility to such Equipment. Licensor and Licensee agree to work together in good faith to minimize any disruption of Licensee s services as a result of such relocation. This Agreement shall terminate in its entirety, without any party hereto having any liability to any other party hereto (other than liabilities then accrued hereunder), in the event of a final determination (following all appeals, if any, by any party hereto) by any governmental entity having jurisdiction that the license granted hereunder is illegal. 18. Removal of Licensee s Equipment. Except as provided above in connection with a Licensor relocation, upon termination of this Agreement for any reason, Licensee shall remove Licensee s Equipment within thirty (30) days of such termination and shall remain liable for any recurring and non-recurring charges during such thirty (30)-day period or until such time as Licensee s Equipment has been removed from the Premises. In the event Licensee fails to remove Licensee s Equipment within such thirty (30)-day period, such Equipment shall be deemed abandoned; and Licensor, at its sole discretion and without liability, may remove Licensee s Equipment, and Licensee shall reimburse Licensor for all costs associated with such removal. 19. Insurance. Licensee shall, at its own expense, procure and maintain throughout the Term the following insurance from an insurance company or companies satisfactory to Licensor: a. commercial general liability insurance, including contractual liability, insuring against liability for personal injury or death, property damage or other loss in an amount of not less than $1,000,000 combined single limit with respect to any occurrence and $2,000,000 in the aggregate; and, b. worker s compensation insurance, including employer s liability, with limits of not less than $100,000 per accident, (VI, MMVIII) C 226 page 3 of 8

4 or as required by any applicable worker s compensation or similar statute. The commercial general liability policy shall include Licensor as an additional insured; and, at Licensor s request, Licensee shall deliver to Licensor, prior to and as a condition of Licensee s use of the Premises, a certificate of insurance evidencing all of the above insurance requirements. Such policies of insurance shall require notice to Licensor not less than sixty (60) days prior to any cancellation or material change in any coverage, except in the event of premium nonpayment, in which case such policies of insurance shall require notice to Licensor not less than thirty (30) days prior to any cancellation or material change in any coverage. The required minimum amounts of insurance shall not be construed to limit or diminish Licensee s liability under this Agreement. 20. Indemnification Licensee shall indemnify, defend and hold harmless Licensor, its directors, officers, employees, trade contractors, successors and assigns from any loss, damage, cost of defense (including reasonable attorneys fees and court costs), resulting from injury to persons (including death) or damage to property, arising in connection with this Agreement to the extent caused by breach of contract, negligence or willful misconduct of Licensee, its employees, agents or independent contractors Licensor shall indemnify, defend and hold harmless Licensee, its directors, officers, employees, trade contractors, successors and assigns from any loss, damage, cost of defense (including reasonable attorneys fees and court costs), resulting from injury to persons (including death) or damage to property, arising in connection with this Agreement to the extent caused by breach of contract, negligence or willful misconduct of Licensor, its employees, agents or independent contractors. 21. Entire Agreement. This Agreement supersedes and replaces any prior agreements, understandings or arrangements, whether oral or written, heretofore made between Licensor and Licensee regarding the subject matter hereof. This Agreement shall not be modified, changed, altered or amended except by an express written agreement signed by duly authorized representatives of Licensor and Licensee hereto. 22. Assignment. This Agreement shall not be assigned by either party without the consent of the other party, which consent shall not be unreasonably withheld; provided however, either party may, with notice to but without the consent of the other party, assign this Agreement to an affiliate or a successor in interest to all or substantially all of the assets of such party. Except in the case of an assignment resulting from a merger, acquisition or other transaction upon the completion of which Licensee ceases to exist as a separate business entity, Licensee shall be jointly and severally liable with any permitted assignee for the performance of all of Licensee s obligations hereunder. 23. Liens and Encumbrances. Licensee has no power, authority or right to create and will not permit any lien or encumbrance, including without limitation tax, mechanic s or materialmen s liens, with respect to work performed or equipment furnished in connection with the installation, repair, maintenance or operation of Licensee s Equipment, including work by its employees, agents, and independent contractors. 24. Notices. Any notices or communications required or desired to be given in connection with this Agreement shall be in writing and shall be delivered to the applicable party by hand, by U.S. Certified Mail, return receipt requested, or by overnight delivery service, addressed as follows: In the case of Licensor: ReachONE Internet rd Ave SE, Suite 2 Lacey, WA With copies to the Licensor operating company office responsible for the Premises, as shall be identified by Licensor from time to time. Any notice given under this Agreement shall be effective upon receipt thereof by the party to whom it is sent. Licensor or Licensee may change its respective address by delivery of a written notice to the other party as provided above. 25. DISCLAIMER OF WARRANTIES. LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR ANY LICENSEE EQUIPMENT PLACED THEREIN OR ANY OTHER SERVICES, MATERIALS OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT- ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN EXHIBIT C HERETO. 26. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUD- ING WITHOUT LIMITATION LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF PROFITS, ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF ANY OBLIGATION HEREUNDER. IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES, DIRECT OR INDIRECT, TO LICENSEE S EQUIPMENT, UNLESS SUCH DAMAGE IS CAUSED BY LICENSOR S NEGLIGENCE OR WILLFUL MISCONDUCT. 27. Unique Agreement. The terms, rates, and conditions of this Agreement are unique to the particular needs of Licensee and capabilities of Licensor at the time of the making of this agreement, including those matters set out in Exhibit B hereto. This Agreement does not constitute an offer to make nor a precedent for the making of any other Agreement with Licensee, its successors, assigns or any other party at any (VI, MMVIII) C 226 page 4 of 8

5 other time or under any other circumstances. 28. Governing Law. This Agreement shall be constructed and enforced in accordance with the laws of the State of Washington. 29. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder to the extent such delay or failure is due to causes beyond the control of said party, including, but not limited to: acts of God; acts of the public enemy; acts of the United States of America or any state, territory or political subdivision thereof or of the District of Columbia; material adverse weather conditions; strikes or similar circumstances (each a Force Majeure Condition ). Performance shall be excused during the existence of the Force Majeure Condition and for a reasonable period thereafter as may be necessary for the affected party to resume performance; provided, however, that if any delay in performance shall exceed thirty (30) days, the aggrieved party may, at its option, terminate this with respect to the affected Premises, but neither Licensor nor the affected Licensee(s) shall have any liability for damages or other amounts as the result of any such termination. 31. Severability. In the event that any one or more of the provisions of this Agreement should be held unenforceable under any federal, state or local law, such invalidity or unenforceability shall not affect the remainder of this Agreement, which shall remain in full force and effect. 32. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. 33. Nonwaiver. The waiver by Licensor of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other term, covenant or condition or of any subsequent breach of the same term, covenant or condition. 34. Counterparts. This Agreement may be executed in one or more identical counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. (VI, MMVIII) C 226 page 5 of 8

6 SERVICE LEVEL WARRANTY 1. LICENSOR REPRESENTATIONS AND WARRANTIES. 1.1 General. Authority and Performance of Licensor. Licensor represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable U.S. laws or regulations, including OSHA requirements, or cause a breach of any agreements with any third parties. In the event of a breach of the warranties set forth in this paragraph 1.1(a), Customer s sole remedy is termination pursuant the Agreement Service Level Warranty. In the event that Customer experiences any of the service performance issues defi ned in this Section 1.2 as a result of Licensor failure to provide bandwidth or facility services, Licensor will, upon Customer s request in accordance with paragraph 1.2(d) below, credit Customer s account as described below (the Service Level Warranty ). The Service Level Warranty shall not apply to any services other than bandwidth and facility services, and, shall not apply to performance issues (i) caused by factors outside of Licensor reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer s equipment and/or third party equipment (not within the sole control of Licensor). (a) Service Warranty Defi nitions. For purposes of this Agreement, the following defi nitions shall apply only to the Services (not including Professional Services). (i) Downtime shall mean sustained packet loss in excess of fi fty percent (50%) within Licensor U.S. network for fi fteen (15) consecutive minutes due to the failure of Licensor to provide Service(s) for such period. Downtime shall not include any packet loss or network unavailability during Licensor scheduled maintenance of the Internet Data Centers, network and Service(s), as described in the Rules and Regulations nor any packet loss or network unavailability due to the acts or omissions of third parties or their network or equipment. (ii) Excess Latency shall mean transmission latency in excess of one hundred twenty (120) milliseconds round trip time between any two points within Licensor U.S. network. (iii) Excess Packet Loss shall mean packet loss in excess of one percent (1%) between any two points within Licensor s U.S. network. (iv) Performance Problem shall mean Excess Packet Loss and/or Excess Latency. (v) Service Credit shall mean an amount equal to the pro-rata monthly recurring connectivity charges (i.e., all monthly recurring bandwidth-related charges) for one (1) day of Service. (b) Downtime Periods. In the event Customer experiences Downtime, Customer shall be eligible to receive from Licensor a Service Credit for each Downtime period. Examples: If Customer experiences one Downtime period, it shall be eligible to receive one Service Credit. If Customer experiences two Downtime periods, either from a single event or multiple events, it shall be eligible to receive two Service Credits. (c) Performance Problem; Packet Loss and Latency. In the event that Licensor discovers or is notifi ed by Customer that Customer is experiencing a Performance Problem, Licensor will take all actions necessary to determine the source of the Performance Problem. (i) Time to Discover Source of Performance Problem; Notifi cation of Customer. Within two (2) hours of discovering or receiving notice of the Performance Problem, Licensor will determine whether the source of the Performance Problem is limited to the Customer Equipment and the Licensor equipment connecting the Customer Equipment to the Licensor LAN. If Licensor determines that the Customer Equipment and Licensor connection are not the source of the Performance Problem, Licensor will determine the source of the Performance Problem within an additional two (2) hour period. In any event, Licensor will notify Customer of the source of the Performance Problem within sixty (60) minutes of identifying the source. (ii) Remedy of Packet Loss and Latency. If the source of the Performance Problem is within the sole control of Licensor, Licensor will remedy the Performance Problem within two (2) hours of determining the source of the Performance Problem. If the source of and remedy to the Performance Problem reside outside of the Licensor s network, Licensor will use commercially reasonable efforts to notify the party(ies) responsible for the source of the Performance Problem and cooperate with it (them) to resolve such problem as soon as possible. (iii) Failure to Determine Source and/or Remedy. In the event that Licensor (A) is unable to determine the source of the Performance Problem within the time periods described in subsection (i) above and/or; (B) is the sole source of the Performance Problem and is unable to remedy such Performance Problem within the time period described in subsection (ii) above, Licensor will deliver a Service Credit to Customer for each two (2) hour period in excess of the time periods for identifi cation and resolution described above. (d) Customer Must Request Service Credit. In order to receive any of the Service Credits described in this Section 1.2, Customer must notify Licensor within seven (7) days from the time Customer becomes eligible to receive a (VI, MMVIII) C 226 page 6 of 8

7 Service Credit. Failure to comply with this requirement will forfeit Customer s right to receive a Service Credit. (e) Remedies Shall Not Be Cumulative; Maximum Service Credit. The aggregate maximum number of Service Credits to be issued by Licensor to Customer for any and all Downtime periods and Performance Problems that occur in a single calendar month shall not exceed seven (7) Service Credits. A Service Credit shall be issued in the Licensor invoice in the month following the Downtime or Performance Problem, unless the Service Credit is due in Customer s fi nal month of Service. In such case, a refund for the dollar value of the Service Credit will be mailed to Customer. Customer shall also be eligible to receive a pro-rata refund for (i) Downtime periods and Performance Problems for which Customer does not receive a Service Credit and (ii) any Services Licensor does not deliver to Customer for which Customer has paid. (f) Termination Option for Chronic Problems. Customer may terminate this Agreement for cause and without penalty by notifying Licensor within fi ve (5) days following the end of a calendar month in the event either of the following occurs: (i) Customer experiences more than fi fteen (15) Downtime periods resulting from three (3) or more nonconsecutive Downtime events during the calendar month; or (ii) Customer experiences more than eight (8) consecutive hours of Downtime due to any single event. Such termination will be effective thirty (30) days after receipt of such notice by Licensor. (g) THE SERVICE LEVEL WARRANTY SET FORTH IN THIS SECTION 1.2 SHALL ONLY APPLY TO THE BANDWIDTH AND FACILITIES SERVICE(S) PROVIDED BY LICENSOR AND, DOES NOT APPLY TO ANY OTHER OR SUPPLEMENTAL SERVICES AND ANY SERVICE(S) THAT EXCLUDE THIS SERVICE LEVEL WARRANTY. THIS SECTION 1.2 STATES CUSTOMER S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY LICENSOR TO PROVIDE SERVICE(S). 1.3 Service Performance Warranty. Licensor warrants that it will perform the Services in a manner consistent with industry standards reasonably applicable to the performance thereof. 1.4 Selection of Licensor Supplied Equipment; Manufacturer Warranty. Customer acknowledges that it has selected the Licensor Supplied Equipment and disclaims any statements made by Licensor. Except with respect to any express warranties for Service(s) related to Licensor Supplied Equipment, Customer acknowledges and agrees that its use and possession of the Licensor Supplied Equipment by Customer shall be subject to and controlled by the terms of any manufacturer s or, if appropriate, supplier s warranty, and Customer agrees to look solely to the manufacturer or, if appropriate, supplier with respect to all mechanical, service and other claims, and the right to enforce all warranties made by said manufacturer are hereby, to the extent Licensor has the right, assigned to Customer solely for the Initial Term. 1.5 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN AS IS BASIS, AND CUSTOMER S USE OF THE SERVICES IS AT ITS OWN RISK. LICENSOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRAC- TICE. LICENSOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. 1.6 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. LICENSOR DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM LICENSOR S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH LICENSOR WILL USE COM- MERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, LICENSOR CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, LICENSOR DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. (VI, MMVIII) C 226 page 7 of 8

8 ReachONE Internet Co-Location Services Exhibit B Additional Costs for services beyond basic limits Co-Location Services After Hours Escort Set-Up Monthly Hourly $79 (1 hr./minimum) Additional Bandwidth $125 $100 per MB Additional Power-20 Amps AC $125 $125 Technical Support After Hours Technical Support $95 (1 hr./minimum) $139 (1 hr./minimum) (VI, MMVIII) C 226 page 8 of 8