Internet Service Level Agreement

1) Application of Network Innovations Backbone SLA

These Network Innovations Backbone Service Level Agreements (SLAs) provide Customers in North America with certain rights and remedies regarding the performance of the Network Innovations Backbone (as defined below). These Network Innovations Backbone SLAs apply only to North American Customers receiving the following services from Network Innovations: (i) 56 kbps point-to-point, frame relay (all access speeds) and T1, T3, OC3, or OC12 services, and/or (ii) colocation or dedicated server services (each a "Customer"), unless otherwise specified for a Customer. Notwithstanding the foregoing, these Network Innovations Backbone SLAs do not apply to Network Innovations Customers who are covered by the Network Innovations Data Center Access Network Service Level Agreement or to other Customers of Network Innovations for services such as, by way of example but not limitation, xDSL, ISDN or Dial-up access services.

For purposes of these Network Innovations Backbone SLAs, the following terms have the meanings set forth below:

• "Network Innovations Backbone" means Network Innovations resale of Internet Protocol (IP) routing infrastructure consisting solely of selected Network Innovations underlying carriers points of presence at which Network Innovations underlying carrier has installed measurement devices ("Selected POPs") (i) within the United States and the connections between them in the forty-eight continental United States (the "North American Network"), (ii) within Europe and the United States and the Trans-Atlantic connections between such Selected POPs (the "Trans-Atlantic Network") and (iii) within Asia and the United States and the Trans-Pacific connections between such Selected POPs (the "Trans-Pacific Network").
  
  
• "Network Outage" means an instance in which no traffic can pass in or out of the Selected POP through which Customer connects to the Network Innovations Backbone for more than 15 consecutive minutes.
  
  
• "Latency" means the average time required for round-trip packet transfers between Selected POPs on the selected portions of the Network Innovations Backbone during a calendar month, as measured by Network Innovations.
  
  
• "Packet Loss" means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by Network Innovations.
  
  
• "Average Jitter" means the average variation in delay for packet transfers between Selected POPs during a calendar month, as measured by Network Innovations.
  
  
• "Maximum Jitter" means the maximum variation in delay for packet transfers between Selected POPs, as measured by Network Innovations.
  
  
• "Base Fee" consists solely of the base monthly fee paid by Customer for the affected Network Innovations service and excludes all other fees which might be charged to Customer, including, by way of example and not limitation, set-up fees, fees for local loop, space rental fees, charges for additional services such as managed services, incremental bandwidth usage, electricity, extra IP addresses, RAM, or hard drives beyond that which is available without additional charge under Network Innovation's standard rates, hourly support charges, and other types of optional additional services.

For example, for Dedicated Server Customers, the Base Fee may include just the fee for the standard server package, which would cover the use of the server and up to the amount of data transfer allowed each month without additional charge. For Customers of other Network Innovations services, the Base Fee may include just the base monthly access or bandwidth fee paid by a Customer.

As described in more detail below, these Network Innovations Backbone SLAs provide commitments based upon goals in four key areas:

• the Network Innovations Backbone is available to Customer free of Network Outages 100% of the time.
  
  
• Latency of the Network Innovations Backbone of (i) 55 milliseconds or less for the North American Network, (ii) 90 milliseconds or less for the Trans-Atlantic Network and (iii) 130 milliseconds or less for the Trans-Pacific Network.
  
  
• Packet Loss of the Network Innovations Backbone of 0.1% or less.
  
  
• Average Jitter on the Network Innovations Backbone of 500 microseconds or less; and Maximum Jitter not to exceed 10 milliseconds more than 0.1% of the time.

Network Innovation's goal is to make the Network Innovations Backbone available to Customer free of Network Outages 100% of the time.

Subject to Sections 9 and 10 below, upon Customer's request, Network Innovations will issue a credit to Customer for Network Outages in an amount equal to one day's worth of the Base Fee paid by Customer, multiplied by each hour (or portion thereof rounded to the next hour) of the cumulative duration of such Network Outages during a particular month.

Network Innovation's goal is to keep Latency on the Network Innovations Backbone to (i) 55 milliseconds or less for the North American Network, (ii) 90 milliseconds or less for the Trans-Atlantic Network and (iii) 130 milliseconds or less for the Trans-Pacific Network.

Subject to Sections 9 and 10 below, if Latency on the North American Network, the Trans-Atlantic Network or the Trans-Pacific Network, as applicable, for a calendar month exceeds the time frame set forth above for the applicable portion of the Network Innovations Backbone, Network Innovations will issue a credit to Customer equal to one day's worth of the Base Fee paid by Customer for such month.

The terms of this Network Innovations Backbone SLA related to Latency will take effect the first full calendar month after Customer's first use of the Network Innovations Backbone.

Network Innovation's goal is to keep Packet Loss on the Network Innovations Backbone to 0.1% or less. If Packet Loss on the Network Innovations Backbone exceeds 0.1% during a calendar month, Network Innovations will issue a credit to Customer equal to one day's worth of the Base Fee paid by Customer for such month.

The terms of this Network Innovations Backbone SLA relating to Packet Loss will take effect the first full calendar month after Customer's first use of the Network Innovations Backbone.

Network Innovation's goal is to keep Average Jitter on the Network Innovations Backbone to 500 microseconds or less; and for Maximum Jitter not to exceed 10 milliseconds more than 0.1% of a calendar month. Subject to Sections 9 and 10 below, if Average Jitter on the Network Innovations Backbone exceeds 500 microseconds; or if Maximum Jitter exceeds 10 milliseconds more than 0.1% of a calendar month, Network Innovations will issue a credit to Customer equal to one day's worth of the Base Fee paid by Customer for such month.

The terms of this Network Innovations Backbone SLA relating to Jitter will take effect the first full calendar month after Customer's first use of the Network Innovations Backbone.

Network Innovations will periodically (on average every 15 minutes) measure the Network Innovations Backbone at Selected POPs using software and hardware components capable of measuring traffic and responses at such Selected POPs. Customer acknowledges that not every POP may be covered by such measurements, that such measurements may not measure the exact path traversed by Customer's packets, and that such measurements constitute measurements across the Network Innovations Backbone but not other networks to which Customer may connect. Network Innovations reserves the right to periodically change the measurement points and methodologies it uses without notice to Customer. For reports of performance of the Network Innovations Backbone, please refer to the relevant links provided on this Web page.

Customer shall not receive any credits under these Network Innovations Backbone SLAs in connection with any failure or deficiency of the Network Innovations Backbone caused by or associated with:

a. circumstances beyond Network Innovations reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Network Innovations Backbone SLAs;

b. failure of access circuits to the Network Innovations Backbone, unless such failure is caused solely by Network Innovations;

c. scheduled maintenance and emergency maintenance and upgrades;

d. DNS issues outside the direct control of Network Innovations;

e. false SLA breaches reported as a result of outages or errors of any Network Innovations measurement system; or

f. Customer's acts or omissions (or act or omissions of others engaged or authorized by Customer), including without limitation, any negligence, willful misconduct, or use of the Network Innovations Backbone or Network Innovations services in breach of Network Innovation's Terms and Conditions of Service or Network Innovation's Acceptable Use Policy.

In order to receive a credit, Customer must make a request via email to billing@ninnovations.com. Each request in connection with a Network Outage must be received by Network Innovations within seven days of the Network Outage and must be confirmed by Network Innovation's measurements of the Network Innovations Backbone. Network Innovations must receive each request in connection with Latency or Packet Loss in a calendar month within seven days after the end of such month.

Each valid credit will be applied to an invoice of Customer within two billing cycles after Network Innovation's receipt of Customer's request therefore. Credits are exclusive of any applicable taxes charged to Customer or collected by Network Innovations.

Notwithstanding anything in this Network Innovations Backbone SLA to the contrary, the total amount credited to a Customer in connection with Network Outages, Latency, Jitter and Packet Loss in any calendar month will not exceed the Base Fee paid by Customer for such month.

Network Innovations will make commercially reasonable efforts to meet a Service Availability of 99.99% for domestic Protected (1+1) Circuits and 99.9% for domestic Unprotected (1+0) Circuits pursuant to the Service Levels set forth in its performance specifications. This attachment sets forth the credit(s) that Customer will receive if the Service Levels are not met, in addition to those rights and remedies available under the Agreement.

(a) A Circuit shall be deemed to be in an outage condition if, while Customer is using or attempting to use such Circuit, such Circuit loses continuity, becomes unavailable or fails to comply with the applicable specifications for such Circuit (“Outage”). Subject to the restrictions herein, Customer is entitled to an “Outage Credit” in the event that the Service Levels described in the Service Level Agreement are not met. An “Outage Period” begins when a report is made to Network Innovations customer service from Customer by telephone or via email interface, that Service has been impaired, lost or interrupted. Customer must agree that such Circuit is released for repair by Network Innovations or its agent. An Outage Period ends when the Circuit is restored. Network Innovations will notify customer by telephone and Customer will confirm that Service has been restored. Any additional time necessary for Customer’s confirmation shall not operate to extend the calculation of the Outage Period. Events that cause an Outage but involve simultaneous multiple failures, shall be treated as one single Outage for purposes of calculation of Outage Credits. In the event of any dispute between the parties in respect of a Service being available or subject to an Outage Credit, Network Innovations shall retain the sole right to determine the period of such availability for the purpose of calculating any Outage Credits due under the terms of this Agreement.

All Outage Credits shall be subject to the following restrictions:

(i) No credit shall be allowed with respect to any period during which Customer fails to afford access to any facilities provided by Network Innovations for the purpose of investigating and correcting an interruption to Service.

(ii) The Monthly Lease Rates used to determine any credit hereunder shall be the then current Monthly Lease Rates being assessed.

(iii) In no event shall any credit be allowed hereunder (1) in excess of the then current Monthly Lease Rate for the applicable Circuit or (2) with respect to any Circuit for which Customer (i) fails to make or (ii) is excused from making any payment because of operation of law or any other reason.

(b) The duration of the Outage Period and Outage Credits will be determined at the sole discretion of Network Innovations, based upon Network Innovation’s internal records. Customer shall have the right to request credit(s) for a period of thirty (30) days after the occurrence of an outage or alleged outage. Customer shall have the right to contest any calculations of credit(s) for a period of thirty (30) days after Customer’s receipt of invoice on which said credit(s) appear.

(c) No Outage Credits are allowed for Outage Periods:

(i) Caused directly or indirectly by the acts or omissions of Customer;

(ii) Caused by the failure of equipment or systems provided by Customer or any third party (not under the direction or control of Network Innovations), including any provider of local access service to Network Innovations contracted for, by, or on behalf of Customer (in such case, Network Innovations will coordinate with such local access service provider to cure such failure as quickly as practicable);

(iii) Caused by a Force Majeure event;

(iv) Occurring with respect to a Circuit released by Customer to Network Innovations (i) to perform maintenance, (ii) to make rearrangements at the direction of Customer, or (iii) to implement an order from Customer for a change in the Circuit; or

(v) Occurring with respect to a Circuit that Customer elects not to release for testing or repair and continues to use on an impaired basis.

(vi) Interruption of Service on a Circuit for maintenance. Network Innovations shall use its best efforts to give Customer two (2) days prior notice thereof by telephone, facsimile or E-mail. Network Innovations will use its best efforts to schedule such Service interruptions between midnight and 6:00 a.m. for domestic circuits or during local off-peak hours for international circuits. Credits will not be allowed with respect to such Service interruptions if Network Innovations has used its best efforts to so notify Customer in accordance with this paragraph.

(d) The credits and/or cancellation of a Circuit in the case of chronic outage problem provided for hereunder shall be Network Innovations sole liability and Customer’s sole remedy in the event of any outage period or interruption of Service.

(a) Domestic Service Level Outage Credits will be calculated and granted based upon the following Service Availability Objective:

(b) International Service Level Outage Credits will be calculated and granted based upon the following Service Availability Objective: