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TERMS AND CONDITIONS
These Terms and Conditions (the “T&Cs”), the Service Schedules, the Acceptable
Use Policy (the “AUP”) and Customer’s Order(s) set out the terms and conditions
that apply to Customer’s access to and use of the Services and forms an
agreement (this “Agreement”) between PacketFabric, Inc. (“PacketFabric”) and the
customer (“Customer”). PacketFabric and Customer may be referred to individually
as “Party” and collectively as “Parties.”
1. ORDERING SERVICES
1.1 Services. PacketFabric’s services are separated into two broad categories:
a) Transmission Services (which includes Core Services and Type 2 Services):
PacketFabric’s transmission of the Customer’s Data; and b) IP Transit Services:
PacketFabric’s provision of Internet protocol network for purposes of exchanging
data traffic with endpoints on the public Internet. The Services are described
in the Service Schedules. In the event Customer wishes to resell the Services,
the Parties will execute a separate Reseller Addendum.
1.2 Portal. Customer may place Orders for Services and may perform various
functions relating to the Services via PacketFabric’s proprietary platform or an
application program interface (“API”) (the “Portal”). Customer may designate
Users to perform certain functions, via various access levels and permissions on
the Portal. Customer acknowledges that Users may place Orders via the Portal
which will impact Customer’s MRC (defined below). PacketFabric will make a
confirmation receipt available in the Portal for any modified or additional
Orders for Services placed via the Portal. Customer is solely responsible for
establishing and maintaining the security and confidentiality of its usernames,
passwords, and other information utilized to access the Portal (collectively,
“Customer’s Access Information”). Customer agrees to immediately notify
PacketFabric if there is any unauthorized use of Customer’s Access Information,
or any use inconsistent with the terms of this Agreement. PacketFabric may
change or discontinue any application program interface for the Services from
time to time but will use commercially reasonable efforts to continue supporting
the previous version of any API changed. PacketFabric reserves the right to
temporarily deactivate Customer’s access to the Portal in the event no activity
has been logged for at least six (6) months; provided, however, that any such
deactivation shall not change Customer’s payment obligations. In the event
Customer requests in writing that access be reactivated within the Service Term,
PacketFabric will reactivate the account with new logins.
1.3 Term. These T&Cs shall remain in effect until the later of the following
events: (a) all Orders have expired or been terminated; or (b) either Party
provides written notice of termination to the other Party in accordance with
this Agreement.
1.4 Service Term. Every Order will contain a time period for which the Customer
agrees to pay for the Services covered by such Order (“Service Term”). A Service
Term is specific to each particular Service covered by an Order, and therefore
an Order may contain multiple different Service Terms. The Service Term
commences on the Billing Start Date for the applicable Service and continues for
the duration of the specified Service Term, unless terminated or renewed in
accordance with this Agreement. Upon the conclusion of the Service Term, each
Service will automatically extend on a month-to-month basis at PacketFabric’s
then-current published month-to-month rates, unless and until Customer
terminates the Service in the Portal or either Party provides the other with 30
days’ prior written notice of cancellation.
1.5 Services Outside the United States. If an Order requires the provision of
Services outside the United States, additional terms and conditions will apply
as set forth in Exhibit 1 Foreign Addendum.
1.6 Orders by Customer Affiliate. Customer’s Affiliates may order Services from
PacketFabric by submitting an Order. Customer will be the customer of record for
all Services provided under this Agreement (including Services provided to a
Customer Affiliate) and, together with any ordering Customer Affiliate, will be
jointly and severally liable for all obligations set out in this Agreement,
notwithstanding that an Order is submitted by a Customer Affiliate or that the
invoices for a Service are sent to a Customer Affiliate. If an Order is placed
by a Customer Affiliate, references in this Agreement to Customer will be read
as references to both Customer and the relevant Customer Affiliate.
1.7 Services Provided by a PacketFabric Affiliate. A PacketFabric Affiliate may
provide the Services, at PacketFabric’s sole discretion. If a PacketFabric
Affiliate provides any Services, the PacketFabric Affiliate will be solely
liable for those Services and references in this Agreement to PacketFabric will
be read as references to that PacketFabric Affiliate only.
2. INVOICING AND PAYMENT
2.1 Fees. Fees are set out in the Order and may be comprised of a monthly
recurring charge (“MRC”) and/or a one-time, non-recurring charge (“NRC”), and/or
variable usage charges. PacketFabric may invoice any MRC monthly in advance or
at the end of the month, as determined in PacketFabric’s sole discretion. Any
NRC will be invoiced in arrears. Customer is responsible for payment of all
usage charges incurred on its account. All charges are payable within 30 days of
the date of invoice and payable in USD. Invoices will be delivered
electronically to the email address Customer specifies on the Order or in the
Portal. Any invoice disputes must be submitted within 30 days of the date of
invoice. Any invoice dispute not submitted within such period shall be deemed
waived. Customer is responsible for any bank handling or charges PacketFabric
incurs due to Customer’s vendor or third-party billing platform.
2.2 Late Payments. If Customer does not pay all undisputed amounts by the due
date, PacketFabric may charge Customer interest (calculated on a daily basis) on
any unpaid amounts at a monthly rate of 1.5%, or the maximum amount chargeable
by law, whichever amount is lower. Additionally, in the event Customer fails to
cure its non-payment breach of this Agreement, PacketFabric shall be entitled to
recover any costs of collection, including reasonable attorneys’ fees incurred
in collecting such overdue amounts.
2.3 Credit Procedures. Customer authorizes PacketFabric to conduct an initial
credit check on Customer. If Customer is repeatedly late in paying invoices, or
if a single invoice is more than 60 days past due, PacketFabric may require
prepayment as a condition to continuing to provide the Services to Customer, in
an amount not to exceed three months estimated charges. Additionally,
PacketFabric may set a credit limit on Customer’s account; if Customer exceeds
its credit limit, PacketFabric may restrict Customer’s ability to order new
Services and/ or require prepayment from Customer. PacketFabric may also
communicate with credit reporting agencies about Customer’s delayed payments.
2.4 Taxes. Customer must pay all Taxes in respect of the Services. Unless
expressly stated otherwise in the Order, the charges for the Services are
exclusive of any Taxes.
3. CUSTOMER RESPONSIBILITIES.
3.1 Compliance. Customer is solely responsible for obtaining all licenses,
approvals, and regulatory authority for its business operations and use of the
Services. Customer shall comply with all applicable laws, rules, and regulations
relating to Customer’s use of the Services, including the AUP.
3.2 Limits on Use of Service and Portal. Customer shall not, and shall not
permit its Users or any third party to: (a) modify, adapt, or create any
derivative work of any part of the Portal, or software associated with the
Services (collectively referred to as “PacketFabric’s Network”), or attempt to
recompile, reverse engineer or disassemble PacketFabric’s Network; (b) use any
automatic device or program to monitor, copy, or reproduce PacketFabric’s
Network or any portion of such; or (c) intentionally interfere with the
functionality of PacketFabric’s Network.
3.3 Customer’s Equipment and Cross-Connects. Customer shall ensure that the
equipment it uses in connection with any Service shall not: (a) interfere with
or impair service of any facilities and equipment of PacketFabric and its
suppliers; (b) impair the privacy of any data carried over the Services; or (c)
create hazards to the employees of PacketFabric or the public. Customer must (at
Customer’s cost): (i) establish and maintain all cabling at third-party sites
(including all cross-connects) from the Service demarcation point to Customer’s
own equipment and comply with any requirements of the third-party site provider
in relation to that cabling; and (ii) uninstall cross-connects from the
Customer’s equipment to the demarcation point on the date the Service is
terminated. If Customer fails to uninstall such cross-connects on the date the
Service is terminated, PacketFabric may do so, and Customer must reimburse
PacketFabric for all costs and expenses incurred by PacketFabric in connection
with uninstalling the cross-connection. Customer shall indemnify and hold
harmless PacketFabric from any and all claims, losses, liabilities and expenses
that arise from or are related to PacketFabric’s actions in uninstalling such
cross-connects.
3.4 PacketFabric’s Equipment. In the event an Order states PacketFabric is
providing a cabinet, server, or other similar equipment at Customer’s location
(“PacketFabric’s Equipment”), Customer is responsible for: a) providing the
necessary power and space as specified in the applicable Order in a secure
location with appropriate cooling; b) allowing PacketFabric employees access, as
necessary, to PacketFabric’s Equipment when reasonably requested; c) ensuring
its representatives do not touch PacketFabric’s Equipment, unless directed by
PacketFabric; d) any damage it causes to PacketFabric’s Equipment due to
Customer’s unauthorized access or failure to comply with the terms of this
Section 3.4; and e) providing PacketFabric with immediate written notice in the
event it becomes aware of any damage to PacketFabric’s Equipment or any future
event which may cause damage to PacketFabric’s Equipment (e.g. construction in
the area where PacketFabric’s Equipment resides, or a planned power outage at
the location where PacketFabric’s Equipment resides).
3.5 Use of the Services. Customer is responsible for all information and data
transmitted or accessed using the Service and is responsible for the actions of
any person or entity who have access to the Service via Customer’s account.
Customer must not resell a Service to any third-party prior to the execution of
a Reseller Addendum by authorized representatives of Customer and PacketFabric.
3.6 PacketFabric’s Policies. Customer agrees and will ensure that any of
Customer’s Affiliates, Users and any individuals who use the Services pursuant
to this Agreement are aware of and consent to PacketFabric’s collection, use and
disclosure of information in accordance with PacketFabric’s Privacy Policy and
any policies applicable to the Services as notified in writing by PacketFabric
to Customer from time to time.
3.7 Indemnification. Customer will indemnify, defend, and hold harmless
PacketFabric and its Affiliates and their respective employees, officers,
directors, agents, stockholders, members, representatives, successors and
assigns (collectively, the “PacketFabric Indemnified Parties”) from and against
any loss, liability, demand, claim, action, cause of action, damage, deficiency,
tax, penalty, fine or expense (including attorneys’ fees) arising out of any
third-party claims that any PacketFabric Indemnified Party may suffer, sustain
or become subject to as a result of, in connection with or arising out of or are
alleged to have arisen as a result of (a) negligent or intentional acts or
omissions of Customer, its Affiliates or its Users, (b) Customer Data, or (c) a
breach by Customer, its Affiliates, or its Users of any term of this Agreement.
PacketFabric will give Customer prompt notice of third-party claims against any
PacketFabric Indemnified Party, and provide commercially reasonable cooperation,
at Customer’s cost, in the investigation, settlement and defense of such claims.
Customer may not settle any claim without the prior written consent of
PacketFabric, which consent shall not be unreasonably withheld.
4. PACKETFABRIC’S RESPONSIBILITIES.
4.1 Compliance. PacketFabric will provide the Services in accordance with laws
and regulations and has obtained all relevant licenses, approvals, and
regulatory authority required for PacketFabric’s supply of the Services in
accordance with the terms of this Agreement, which includes compliance with
relevant data protection and privacy laws regarding Ethernet transmission of
data.
4.2 Customer’s Data. All data which is generated by, or on behalf of Customer,
that Customer elects to route PacketFabric’s Network via Customer’s use of the
Services, which could include text, sound, video, image files, and software
shall be collectively referred to as “Customer’s Data.”
4.3 Customer’s Personal Information. Customer’s use of the Portal will require
Customer to input personally identifiable information (“Personal Data”)
including information related to Customer’s authorized representative(s),
contact information, and billing information. If Customer uses the Portal to
manage or order Services, the Portal may also contain Customer’s Proprietary
Network Information (“CPNI”). PacketFabric will adhere to all security and
privacy laws required for such information.
4.4 CPNI. Customer agrees that the PacketFabric dedicated account
representative, or its delegate, may use any means to provide CPNI to any
representative of Customer. Customer authorizes PacketFabric to share CPNI with
other PacketFabric Affiliates for any lawful purpose, including without
limitation for provisioning, supporting billing and collecting charges for the
Services and to develop, identify, offer, and provide products and services that
may benefit Customer.
4.5 Law Enforcement. PacketFabric will not store data beyond what is provided
for above unless required to do so to comply with any law, subpoena or court
order (including in conjunction with law enforcement agencies).
5. INTELLECTUAL PROPERTY.
5.1 Intellectual Property Rights. Except as expressly set forth in this
Agreement, this Agreement does not grant either Party any rights, implied or
otherwise, to the content or any intellectual property of the other Party. As
between the Parties, Customer owns all Intellectual Property Rights in
Customer’s Data, and PacketFabric owns all Intellectual Property Rights in the
Services, PacketFabric’s Network, and the Portal.
5.2 Customer Feedback. PacketFabric may use any feedback or suggestions about
the Services provided to PacketFabric by Customer without obligation to
Customer, and Customer hereby irrevocably assigns to PacketFabric all right,
title, and interest in such feedback or suggestions.
5.3 IP Indemnification. PacketFabric will indemnify, defend, and hold harmless
Customer and its Affiliates from third-party claims that the Services infringe
the Intellectual Property Rights of a third-party. If PacketFabric reasonably
believes that a claim under this Section 5.3 may bar or materially impair
Customer’s use of the Service(s), PacketFabric will, at its option: (a) seek to
obtain the right for Customer to keep using the Services; or (b) modify or
replace the Services with a functional equivalent and notify Customer to stop
use of the prior version of the Services. If these options are not commercially
reasonable, PacketFabric may terminate the Services and then refund any advance
payments under the applicable Order. The infringement indemnity set forth in
this Section 5.3 states PacketFabric’s entire liability and obligation and
Customer’s sole remedy for any claim of infringement of the Intellectual
Property Rights of a third-party. The foregoing indemnity does not apply to the
extent the claim arises out of any modification of any Services provided by
PacketFabric or use of the Services by Customer in a manner not permitted under
this Agreement or applicable law, relates to services or materials provided by a
third-party, or is caused, or contributed to, by Customer. Customer agrees to
defend, indemnify, and hold harmless any PacketFabric Indemnified Party from and
against any and all damages that any PacketFabric Indemnified Party may suffer
or incur arising out of a claim that alleges that the Services infringe any
Intellectual Property Rights of a third-party due to any of the exceptions in
the preceding sentence.
6. SUSPENSION OF SERVICE.
6.1 Immediate and Temporary Suspension. In the event that, in PacketFabric’s
sole discretion, Customer’s use of the Services (a) poses an immediate and
severe security risk to the Services or any third-party, (b) could subject
PacketFabric, its Affiliates, or any third-party to liability, or (c) could be
fraudulent, PacketFabric may suspend Customer’s access to or use of all or any
portion or all of the applicable Services immediately upon notice to Customer
(which may be via a notification in the Portal).
6.2 Suspension if Customer fails to Cure Default. In addition to PacketFabric’s
suspension rights under Section 6.1, PacketFabric may suspend Customer’s access
to or use of all or any portion of the Services upon notice to Customer in
accordance with this Agreement if: (a) Customer is in breach of this Agreement,
including its payment obligations under any Order and does not remedy the breach
within 30 days of receiving a written notice (or 5 days in the event of a breach
related to payment); or (b) Customer has ceased to operate in the ordinary
course, made an assignment for the benefit of creditors or similar disposition
of its assets, or become the subject of any bankruptcy, reorganization,
liquidation, dissolution or similar proceeding.
6.3 Rights and Obligations during a Suspension. If PacketFabric suspends
Customer’s right to access or use any portion or all of the Services, (a)
Customer remains responsible for all fees and charges incurred during the period
of suspension; (b) Customer will not be entitled to any service credits under
the applicable SLA for any period of suspension; and (c) PacketFabric will have
no liability to Customer for any costs, expenses, damages, or losses arising out
of any suspension by PacketFabric in accordance with the terms of this Section
6. PacketFabric will remove the suspension once the cause(s) of the suspension
has been resolved.
7. DEFAULT AND TERMINATION.
7.1 If a Party commits a material breach of this Agreement and does not remedy
the breach within 30 days of receiving a written notice of the breach (or 5 days
in the event of a breach related to payment), then the other Party may terminate
this Agreement. With respect to Customer, a material breach includes, but is not
limited to, Customer’s use of the Services resulting in a negative impact to
other PacketFabric customers or Customer’s breach of: (a) the terms of this
Agreement, including the AUP; (b) any PacketFabric policy or procedure; or (c)
any applicable law or regulation. In the event PacketFabric terminates this
Agreement due to Customer’s uncured breach, PacketFabric reserves the right to
assess an early termination charge calculated in accordance with the applicable
Service Schedule.
7.2 If Party (the “Defaulting Party”) makes a general assignment for the benefit
of its creditors or any proceeding shall be instituted by or against the
Defaulting Party seeking to adjudicate such Defaulting Party as bankrupt or
insolvent or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection or relief of the Defaulting Party’s debts under any
applicable law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for a substantial portion
of its assets, which proceeding shall remain unstayed for sixty (60) days or the
Defaulting Party shall have taken steps to authorize any of the above actions,
or the Defaulting Party shall become unable to pay its debts as they mature, the
other Party may terminate this Agreement by providing the Defaulting Party a
written notice of termination.
8. WARRANTIES; LIMITATION OF LIABILITY.
8.1 CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS” AND
NEITHER PACKETFABRIC NOR ANY OF ITS AFFILIATES MAKES NO WARRANTY OR
REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED RELATING IN ANY WAY TO
THE SERVICES, THE PORTAL, THE PACKETFABRIC NETWORK, PACKETFABRIC’S EQUIPMENT, OR
ANY CONTENT OR OTHER SERVICE THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY
THOUGH THE SERVICES. PACKETFABRIC AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, PERFORMANCE OR
INTEROPERABILITY OF THE SERVICE WITH ANY CUSTOMER-PROVIDED EQUIPMENT, AND ANY
WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
8.2 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ANY LOSS OF
REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE,
GOODWILL, OR REPUTATION, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES.
8.3 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY, NOR ITS
AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE
SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
8.4 THE LIMITATIONS PROVIDED IN SECTIONS 8.2 AND 8.3 DO NOT APPLY TO EITHER
PARTY’S OR ITS AFFILIATES’ GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNITY
OBLIGATIONS, BREACH OF CONFIDENTIALITY, CUSTOMER’S OBLIGATIONS UNDER SECTION
3.2, NOR SHALL THEY BE INTERPRETED TO REDUCE CUSTOMER’S OBLIGATION TO PAY THE
FEES UNDER AN ORDER.
8.5 THE LIMITATIONS IN THIS SECTION 8 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW AND SHALL SURVIVE FAILURE OF THE ESSENTIAL PURPOSE OF ANY
REMEDIES PROVIDED IN THIS AGREEMENT.
9. CONFIDENTIAL INFORMATION.
9.1 Confidential Information. Each Party must treat as confidential information:
(a) the terms of this Agreement; and (b) all non-public information of the other
Party provided by or on behalf of the other Party or to which a Party has access
in relation to this Agreement, including, with respect to PacketFabric,
PacketFabric’s technical, operational, billing, pricing, and commercial
information in relation to the supply of the Services (such information is a
Party’s “Confidential Information”).
9.2 Disclosure of Confidential Information. A Party must not disclose the other
Party’s Confidential Information to any person except: (a) to its Affiliates and
their respective employees, officers, directors, representatives and
professional advisors (each a “Representative”) on a ‘need to know’ basis
provided the Representative first agrees to observe the confidentiality of the
information and so long as the applicable Party shall remain liable for any
failure of the Representative to keep such information confidential; (b) with
the other Party’s prior written consent; (c) if required by applicable law, any
regulatory authority, court order, or stock exchange; provided that the Party so
required shall, to the extent legally permissible, give the other Party prompt
written notice of such request and, at the other Party’s request, cooperate with
the other Party at its cost in any attempt to limit or shield such disclosure.
Notwithstanding the foregoing, Customer acknowledges and agrees that
PacketFabric may disclose Customer’s Confidential Information to third parties
in providing the Services, which may also involve PacketFabric disclosing,
transferring, storing and making Customer’s Confidential Information accessible
outside the United States, subject to and in accordance with applicable laws.
9.3 Exceptions. Information will not be deemed Confidential Information if the
information is (a) independently developed by the receiving Party without use of
or reliance upon the other Party’s Confidential Information; (b) lawfully
received by the receiving Party free of any obligation to keep it confidential;
or (c) is in the public domain, other than by a breach of this Agreement by the
receiving Party or its Representatives.
10. GENERAL TERMS
10.1 Notices. Legal notices or requests from Customer for written consent must
be in writing and sent via email to: legal@packetfabric.com. For all other
notices (including, for example, operational notices or service alerts) the
Parties agree that electronic notices issued via the Portal are sufficient and
shall constitute written notice. For notices delivered by PacketFabric to
Customer via the Portal, PacketFabric will rely on the account administrator
information supplied by Customer and Customer is solely responsible for updating
such information as required. Notices are deemed effective on the date such
notice is made available to the Party via the Portal. Notices sent by email are
deemed effective on the date sent by the Party giving such notice.
10.2 Modifications. PacketFabric may modify its policies at any time by posting
a revised version on PacketFabric’s website or the Portal or by notifying
Customer in accordance with Section 10.1. Modified terms will be effective
immediately and by continuing to use the Services, Customer will be bound by
such modified terms. If the Services are to be provided in a jurisdiction where,
in order for the Order to be enforceable or consistent with local law or
operational practice, additional terms may be added to this Agreement or
existing terms amended, those additional or amended terms will be set out in an
addendum to this Agreement. Except as set forth in the preceding sentences of
this Section 10.2, any amendment must be in writing, signed by both Parties, and
expressly state that it is amending this Agreement.
10.3 Assignment. This Agreement shall be binding on the Parties and their
respective Affiliates, successors, and assigns. PacketFabric may assign this
Agreement without the Customer’s prior written consent: (a) in connection with
the sale of all or substantially all of its assets; (b) to the surviving entity
in any merger or consolidation; or (c) to an Affiliate. Any other assignment
will require the prior written consent of the other Party.
10.4 Severability. If any part of this Agreement is held unenforceable, the rest
remains in full force and effect.
10.5 Waiver. Failure to enforce any provision of this Agreement will not
constitute a waiver.
10.6 No agency. Customer and PacketFabric are independent contractors. This
Agreement does not create an agency, partnership, or joint venture.
10.7 No third-party beneficiaries. Except for PacketFabric Indemnified Parties
rights under Sections 3.7 and 5.3, there are no third-party beneficiaries to
this Agreement.
10.8 Subcontractors. PacketFabric may have contractors or other agents meet any
of its obligations under this Agreement, but PacketFabric will remain liable to
Customer for satisfying those obligations.
10.9 Remedies cumulative. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the
Parties are cumulative hereunder and are in addition to and not a substitute for
all other remedies contained in this Agreement or as otherwise available at law
or in equity.
10.10 Applicable law and venue. Customer and PacketFabric agree to submit all
questions in connection with the terms of an Order, (including issues arising
from this T&Cs) to the exclusive jurisdiction agreed in that Order (if any). If
the parties do not agree on an exclusive jurisdiction in an Order, they submit
to the non-exclusive jurisdiction of the courts of the jurisdiction where the
Service is provided, or if provided in more than one jurisdiction, where the
Service originates, and to the non-exclusive jurisdiction of the courts of New
York.
10.11 Import and Export Restrictions. The Parties acknowledge that the Services
may be subject to import, export and re-export controls under the U.S. Export
Administration Regulations and certain regulations under the Office of Foreign
Assets Control of the U.S. Department of Commerce and regulations of other
countries or governments. Neither Party shall export or re-export any Services,
software, technical data or intellectual property, or undertake any transaction
in violation of any such export and import laws, and each Party shall be
responsible for its compliance with all such laws.
10.12 Publicity; Use of Name and Marks. Neither Party will issue any press
release or announcement, or any marketing, advertising, or other promotional
materials, related to this Agreement without the prior written approval of the
other Party. Neither Party will use the name or marks of the other Party or any
of its Affiliates for any purpose without the other Party’s prior written
consent. Any such permitted use shall comply with any applicable usage
guidelines that are published or made available by the other Party upon request
and shall not be considered an endorsement.
10.13 Entire Agreement. This Agreement supersedes all prior or contemporaneous
representations, understandings, agreements, or communications between the
Parties, whether written or verbal, regarding the subject matter of this
Agreement.
10.14 Survival. The expiration or termination of this Agreement shall not
relieve either Party of those obligations that by their nature are intended to
survive, including, without limitation, confidentiality, indemnification,
limitation of liability, payment, and governing law/venue.
10.15 Force Majeure. Neither Party will be liable for any failure in performance
(other than Customer’s obligations to pay any fees under any Order) due to
causes beyond its reasonable control (such as fire, explosion, power blackout,
earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil
or military authority, war, terrorism (including cyber terrorism), acts of God,
acts or omissions of Internet traffic carriers, actions or omissions of
regulatory or governmental bodies (including the passage of laws or regulations
or other acts of government that impact the delivery of Services).
10.16 Translation. Any local language translation (where applicable) exists for
reference purposes only, and only the English version will be legally binding.
If there is any inconsistency between the two versions, the English version
shall control. All communications and notices to be made or given pursuant to
this Agreement must be in the English language.
10.17 Order of Precedence/Construction. To the extent reasonably feasible, the
provisions of these T&Cs, the Service Schedules, and the provisions of any Order
shall be read together and interpreted so as to avoid any conflict between them.
In the event of a conflict, precedence will be given in the following order: (a)
the applicable Service Schedule; (b) the Order, but solely with respect to the
Services covered by that Order, and (c) the T&Cs.
10.18 Exhibits. All Exhibits in this Agreement shall be deemed to be
incorporated in and form a part of this Agreement. If there is any inconsistency
between these T&Cs and the provisions of any Exhibit, the provisions of these
T&Cs shall have precedence, except for the specific local clauses provided in
the Foreign Addendum (Exhibit 1); provided that, notwithstanding the provisions
of Exhibit 1, Section 10.10 shall take precedence over Exhibit 1 in the event
the Service is provided in more than one jurisdiction. Terms used in an Exhibit
and also used in these T&Cs shall have the same meaning in the Exhibit as in
these T&Cs.
11. Definitions. The use of the word “include” will mean “includes but is not
limited to.” The singular use of words will include the plural use and vice
versa. As used in this Agreement, the following terms will have the following
meanings:
“Acceptable Use Policy” means the policy that is attached to and incorporated
into these T&Cs as Exhibit 4.
“Agreement” shall have the meaning set forth in the opening paragraph.
“API” shall have the meaning set forth in Section 1.2.
“Affiliates” means any entity that directly or indirectly Controls, is
Controlled by, or is under common Control with a Party. As used in this
definition, “Control” means control of greater than fifty percent of the voting
rights or equity interests of a Party.
“Billing Start Date” means the date the Service is available for Customer’s use,
which is the date PacketFabric may commence charging Customer for the Service.
It also denotes the commencement of the Service Term.
“Confidential Information” shall have the meaning set forth in Section 9.1.
“CPNI” means customer proprietary network information.
“Customer” shall have the meaning set forth in the opening paragraph.
“Customer’s Access Information” shall have the meaning set forth in Section
1.2.
“Customer’s Data” shall have the meaning set forth in Section 4.2.
“Defaulting Party” shall have the meaning set forth in Section 7.2.
“Intellectual Property Rights” means current and future worldwide rights under
patent law, copyright law, trade secret law, trademark law, moral rights law,
and other similar rights.
“MRC” means monthly recurring charge.
“NRC” means non-recurring charge.
“Order” means an order for Services that Customer, a Customer Affiliate or a
User requests PacketFabric or a PacketFabric Affiliate to provide (whether in
manual format or via the Portal). Every Order incorporates the terms of this
Agreement.
“PacketFabric” shall have the meaning set forth in the opening paragraph.
“PacketFabric’s Equipment” shall have the meaning set forth in Section 3.4.
“PacketFabric Indemnified Parties” shall have the meaning set forth in Section
3.7.
“PacketFabric’s Network” shall have the meaning set forth in Section 3.2.
“Party” or “Parties” shall have the meaning set forth in the opening paragraph.
“Personal Data” shall have the meaning set forth in Section 4.3.
“Portal” shall have the meaning set forth in Section 1.2.
“Representative” shall have the meaning set forth in Section 9.2.
“Reseller Addendum” means a separate set of terms and conditions which
authorizes Customer to resell the Services (this may be an Addendum to this
Agreement or a separate agreement).
“Service Term” shall have the meaning set forth in Section 1.4.
“Services” means all services set forth in Customer’s Orders and each particular
service shall be a “Service.”
“Taxes” means taxes, levies, imposts, duties, excise and charges, deductions or
withholdings, however described, imposed by law or a government authority or
agency, including but not limited to any foreign federal, state or local tax
authority, the Federal Communications Commission (including the Universal
Service Fund), state public utilities commissions, and the Universal Service
Administrative Company, and additionally including any related interest,
penalties, fines or other charges or expenses, but excluding income tax or
capital gains tax.
“T&Cs” shall have the meaning set forth in the opening paragraph.
“User” means anyone, including a Customer Affiliate, end user, agent of the
Customer, or any other person or entity who is identified in an Order or uses or
accesses any Service purchased by Customer under this Agreement, including
accessing Customer’s account on the Portal.
Exhibit 1
Foreign Addendum
Australia – For those Services provided in Australia, the following terms and
conditions apply and govern Customer’s receipt and use of the Services
(“Australia Addendum”). In the event of a conflict between the terms contained
in the T&Cs (including any Service Schedule and any Order Form) and the
Australia Addendum, the Australia Addendum shall control.
Section 10.10 Applicable law and venue shall be deleted in its entirety and
replaced with the following: “This Agreement shall be governed in all respects
by the laws of New South Wales, Australia without regard to its conflict of laws
provisions. The Parties each irrevocably submit to the exclusive jurisdiction of
the courts of New South Wales, Australia. English language shall be the
applicable language and translation of this Agreement.”
Canada – For those Services provided in Canada, the following terms and
conditions apply and govern Customer’s receipt and use of the Services (“Canada
Addendum”). In the event of a conflict between the terms contained in the T&Cs
(including any Service Schedule and any Order Form) and the Canada Addendum, the
Canada Addendum shall control.
Section 10.10 Applicable law and venue shall be deleted in its entirety and
replaced with the following: “This Agreement shall be governed in all respects
by the laws of Province of Ontario, Canada without regard to its conflict of law
provisions. The Parties each irrevocably agree to the exclusive jurisdiction of
the courts of Province of Ontario, Canada. English language shall be the
applicable language and translation of this Agreement.”
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France – For those Services provided in France, the following terms and
conditions apply and govern Customer’s receipt and use of the Services (“France
Addendum”). In the event of a conflict between the terms contained in the T&Cs
(including any Service Schedule and any Order Form) and the France Addendum, the
France Addendum shall control.
Section 2.2 Late Payments shall be deleted in its entirety and replaced with the
following: “If Customer does not pay all undisputed amounts by the due date,
PacketFabric may charge Customer interest on any unpaid amounts at a rate of
three (3) times the legal interest rate, as well as a fixed lump sum of EUR 40
for recovery costs, as defined in article L. 441-10 II of the Commercial Code.”
Section 2.5 shall be added and state: “Customer shall not be entitled to set off
any claim it may have against PacketFabric, whether under this Agreement or
otherwise.”
Section 6.1 Immediate and Temporary Suspension shall be deleted in its entirety
and replaced with the following: “In the event that Customer’s use of the
Services (a) poses an immediate and severe security risk to the Services or any
third-party, (b) could subject PacketFabric, its Affiliates, or any third-party
to liability, (c) could be fraudulent, (d) is in breach of this Agreement, or I
infringes any third-party rights, in particular third party intellectual
property rights or data protection rights, PacketFabric may suspend Customer’s
access to or use of all or any portion or all of the applicable Services
immediately upon notice to Customer (which may be via a notification in the
Portal).”
Section 6.2 Suspension if Customer fails to Cure Default shall be amended to add
at the end of this clause “, in accordance with applicable laws.”
Section 6.3 Rights and obligations during a Suspension shall be amended to add
after “If PacketFabric suspends Customer’s right to access or use any portion or
all of the Services” the words “, in accordance with applicable laws,”.
Section 6.4 Consideration of Legitimate Interests shall be added and states: “In
exercising its suspension rights under this Section 6, PacketFabric will
consider the legitimate interests of the Customer, other customers, rights and
interests of third parties, including the legitimate interest of owners of
intellectual property rights and data protection rights, as well as its own
rights as an intermediary service provider. PacketFabric will in particular
consider the severity of the breach, violation or infringement and whether there
is evidence that Customer is not at fault for the breach. In addition,
PacketFabric will consider whether the respective suspension can only be imposed
if there is good cause. Good cause Is required, for example, if the suspension
may lead to serious disadvantages for the affected Customer. If PacketFabric
imposes a suspension, PacketFabric will inform the affected Customer of the
suspension with a justification within the framework of any existing and
applicable legal obligations.”
Section 7.2 shall be amended to add at the end of this clause “, subject to
compliance with applicable laws.”
Section 8.2 shall be amended to remove the reference to “special”, “exemplary”
and “punitive” damages.
Section 8.3 shall be deleted in its entirety and replaced with the following:
“IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY, NOR ITS AFFILIATES,
ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE
SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION PROVIDED IN
THIS SECTION DOES NOT APPLY TO DAMAGE CAUSED BY PHYSICAL INJURY. NOTHING IN THIS
ARTICLE SHALL LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE
LIMITED OR EXCLUDED UNDER APPLICABLE LAW.”
Section 8.6 shall be added to this Agreement and state: “Customer is solely
responsible for conducting the back-ups of its data transmitted when using the
Services. Customer is also solely responsible for saving any information
required for evidence, accounting or other purposes on a storage device
independent of PacketFabric’s Services.”
Section 10.2 Modifications shall be deleted in its entirety and replaced with
the following: “PacketFabric may modify its policies with one month’s prior
notice by posting a revised version on PacketFabric’s website or the Portal and
notifying the Customer in accordance with Section 10.1. Modified Terms become
binding if Customer continues to use the agreed Services after the expiration of
the aforementioned notice period. Upon notification of such a modification, the
Customer is entitled to terminate this Agreement effective at the end of the
aforementioned notice period. PacketFabric will inform Customer of its
termination right in the notification of the modifications. If Customer objects
to the amended policies, PacketFabric has the right to terminate this Agreement.
If the Customer objects to the modifications and PacketFabric does not terminate
this Agreement, it will continue under the original terms and conditions. Except
as set forth in the preceding sentences of this Section 10.2, any amendment must
be in writing, signed by both Parties, and expressly state that it is amending
this Agreement.”
Section 10.3 Assignment shall be amended to add at the end of this clause “which
consent shall not be unreasonably withheld.”
Section 10.11 Applicable law and venue shall be deleted in its entirety and
replaced with the following: “This Agreement shall be governed in all respects
by the laws of France, excluding its provisions on conflict of law. The Parties
each irrevocably submit to the exclusive jurisdiction of the Commercial Courts
in Paris. English language shall be the applicable language and prevailing
translation of this Agreement.”
Section 10.19 Articles 1195 and 1194 shall be added to this Agreement and state:
“Each Party hereby acknowledges and agrees that the provisions of articles 1195
and 1194 of the French Civil Code shall not apply to either Party’s obligations
under or arising from this Agreement and that neither Party shall be entitled to
make any claim under articles 1194 and 1195, specifically in relation to no
hardship caused by a change of circumstances that the Parties cannot anticipate
at the date of signature of this Agreement.”
Section 4.2 Latency of Exhibit 2A, is amended to add the following at the end of
the first paragraph: “PacketFabric will inform Customer with one (1) month’s
prior notice by posting an amended Round-Trip Latency Metric Table on its
website and notifying the Customer in accordance with Section 10.1 of this
Agreement. The modified Round-Trip Latency Matric Table becomes binding if
Customer continues to use the agreed Services after the expiration of the
aforementioned notice period. Upon notification of such a modification, the
Customer is entitled to terminate this Agreement effective at the end of the
aforementioned notice period. PacketFabric will inform Customer of its
termination right in the notification of the modifications. If Customer objects
to the amended Round-Trip Latency Metric Table, PacketFabric has the right to
terminate this Agreement. If the Customer objects to the modifications and
PacketFabric does not terminate this Agreement, it will continue under the
original terms and conditions.
Section 5.3 of Exhibit 2A shall be amended to delete the language: “Customer
shall be deemed to have waived its right to terminate under this Section 5 if it
fails to provide the requisite notice of termination within such thirty (30) day
period.” And “Customer is not eligible to exercise a termination right under
this Section 5 during any period in which it is in default of the T&Cs,
including without limitation, failure to pay undisputed amounts when due”.
Section 5 Termination by Customer for Convenience of Exhibit 3 shall be amended
to delete the language: “No such termination will be effective until Customer
has paid all amounts due and owing.”
Section 4 Chronic Outage of Exhibit 3A shall be amended to delete the language:
“Customer shall be deemed to have waived its right to terminate under this
Section 4 if it fails to provide the requisite notice of termination within such
thirty (30) day period.”
Section 5 Changes to our Acceptable Use Policy of Exhibit 4, sentence 2 shall be
deleted in its entirety and replaced with the following: “Any material changes
to this AUP will be provided to Customer in writing in accordance with the
notice provisions of this Agreement one (1) month before they take effect. The
modified AUP becomes binding if Customer continues to use the agreed Services
after the expiration of the aforementioned notice period. Upon notification of
such a modification, the Customer is entitled to terminate this Agreement
effective at the end of the aforementioned notice period. PacketFabric will
inform Customer of his termination right in the notification of the
modifications. If Customer objects to the amended AUP, PacketFabric has the
right to terminate this Agreement. If the Customer objects to the modifications
and PacketFabric does not terminate this Agreement, it will continue under the
original terms and conditions.”
--------------------------------------------------------------------------------
Germany – For those Services provided in Germany, the following terms and
conditions shall apply and govern Customer’s receipt and use of the Services
(“Germany Addendum”). In the event of a conflict between the terms contained in
the T&Cs (including any Service Schedule and any Order Form) and the Germany
Addendum, the Germany Addendum shall control.
Section 2.1 Fees sentence 5 shall be deleted in its entirety and replaced with
the following: “All charges are payable within 30 days of the date of receipt of
invoice and payable in USD.”, sentence 7 shall be deleted in its entirety and
replaced with the following: “Any invoice disputes must be submitted within 30
days of the date of receipt of invoice.”, and sentence 8 shall be deleted.
Section 2.2 Late Payments shall be deleted in its entirety and replaced with the
following: “If Customer does not pay all undisputed amounts by the due date,
PacketFabric may charge Customer interest on any unpaid amounts at a rate of 9
percentage points (9 Prozenzpunkte) above the applicable base rate.
Additionally, in the event Customer fails to cure its non-payment breach of this
Agreement, PacketFabric shall be entitled to recover any costs of collection,
including reasonable attorneys’ fees up to the statutory amount incurred in
collecting such overdue amounts.”
Section 2.5 shall be added to this Agreement and state: “Customer shall not be
entitled to set off any claim it may have against PacketFabric, whether under
this Agreement or otherwise, against any claim by PacketFabric for any payments
under this Agreement unless the Customer’s claim has become final
(rechtskräftig) or is undisputed, unless the counterclaim and the offset main
claim are synallagmatically linked. Customer shall not be entitled to exercise
of withholding rights (Zurűckbehaltungsrechte) unless the right of withholding
is based on a bindingly awarded (rechtskräftig) or undisputed claim.”
Section 3.7 Indemnification subparagraph (c) shall be deleted in its entirety
and replaced with the following: “(c) a negligent or intentional breach by
Customer, its Affiliates, or its Users of any term of this Agreement.”
Section 6.1 Immediate and Temporary Suspension shall be deleted in its entirety
and replaced with the following: “In the event that Customer’s use of the
Services (a) poses an immediate and severe security risk to the Services or any
third-party, (b) could subject PacketFabric, its Affiliates, or any third-party
to liability, (c) could be fraudulent, (d) is in breach of this Agreement, or
(e) infringes any third-party rights, in particular third party intellectual
property rights or data protection rights, PacketFabric may suspend Customer’s
access to or use of all or any portion or all of the applicable Services
immediately upon notice to Customer (which may be via a notification in the
Portal).”
Section 6.2 Suspension if Customer fails to Cure Default shall be amended to
delete the phrase “or become the subject of any bankruptcy, reorganization,
liquidation, dissolution or similar proceeding” in subparagraph (b).
Section 6.4 Consideration of Legitimate Interests shall be added to this
Agreement and state: “In exercising its suspension rights under this Section 6,
PacketFabric will consider the legitimate interests of the Customer, other
customers, rights and interests of third parties, including the legitimate
interest of owners of intellectual property rights and data protection rights,
as well as its own rights as an intermediary service provider. PacketFabric will
in particular consider the severity of the breach, violation or infringement and
whether there is evidence that Customer is not at fault for the breach. In
addition, PacketFabric will consider whether the respective suspension can only
be imposed if there is good cause. Good cause is required, for example, if the
suspension may lead to serious disadvantages for the affected Customer. If
PacketFabric imposes a suspension, PacketFabric will inform the affected
Customer of the suspension with a justification within the framework of any
existing and applicable legal obligations.”
Section 7.2 shall be deleted in its entirety and replaced with the following:
“If a Party (the “Defaulting Party”) suffers a material deterioration of assets,
the other Party may terminate this Agreement by providing the Defaulting Party a
written notice of termination.”
Section 7.3 shall be added to this Agreement and state: “Each Party may
terminate this Agreement for good cause prior to the expiration of the Service
Term. Good cause is in particular given if the Customer’s use of the Services
infringes any third-party rights, in particular third-party intellectual
property rights or data protection rights.”
Section 8 Warranties; Limitation of Liability shall be deleted in its entirety
and replaced with the following:
8.1 PacketFabric warrants that the Services ordered by and provided to Customer
have the specifications and characteristics provided for and described in the
Service Schedules or as individually agreed in a sperate written agreement and
as ordered by Customer in an Order. The specifications and characteristics
provided for in the Service Schedule, in any individual written agreement and in
Customer’s Order represent the sole agreed specifications and characteristics of
the Services ordered by Customer. The Customer’s legal remedies in the event of
the provision of the Services not in accordance with this Agreement shall be
governed exclusively by the rights agreed in the respective Service Level
Agreements and Customer’s statutory rights for breach of contract.
8.2 PacketFabric is only liable for damages that (a) were caused intentionally
by PacketFabric or its legal representatives or vicarious agents, (b) are based
on negligent or intentional injury to life, limb or health by PacketFabric or
its legal representatives or vicarious agents, (c) are based on gross negligence
by PacketFabric or its legal representatives or vicarious agents, or (d) occur
as a result of a breach of material contractual obligations by PacketFabric. In
the event of a breach of material contractual obligations due to simple
negligence, PacketFabric’s liability shall be limited to the damage typical for
the contract and foreseeable at the time of conclusion of the contract, unless
claims are made in connection with the injury to life, limb or health. Material
contractual obligations are those whose fulfillment is necessary to achieve the
purpose of the contract and whose fulfillment can normally be expected.
8.3 The limitations of liability in this Section 8 shall also apply to the
benefit of PacketFabric’s legal representatives and vicarious agents when claims
are asserted directly against them.
8.4 The liability under to the German Product Liability Act (ProdHaftG) and for
any guarantee granted by the Parties remains unaffected.
8.5 The liability for the loss of data is limited to the effort for retrieval
that would have occurred in case of regular and proper back-ups. Customer is
solely responsible for conducting the back-ups of its data transmitted when
using the Services. Customer is also solely responsible for saving any
information required for evidence, accounting or other purposes on a storage
device independent of PacketFabric’s Services.
8.5. In all other respects, PacketFabric’s liability is excluded.”
Section 10.2 Modifications shall be deleted in its entirety and replaced with
the following: “PacketFabric may modify its policies with one (1) month’s prior
notice by posting a revised version on PacketFabric’s website or the Portal and
notifying the Customer in accordance with Section 10.1. Modified Terms become
binding if Customer continues to use the agreed Services after the expiration of
the aforementioned notice period. Upon notification of such a modification, the
Customer is entitled to terminate this Agreement effective at the end of the
aforementioned notice period. PacketFabric will inform Customer of its
termination right in the notification of the modifications. If Customer objects
to the amended policies, PacketFabric has the right to terminate this Agreement.
If the Customer objects to the modifications and PacketFabric does not terminate
this Agreement, it will continue under the original terms and conditions. If the
Services are to be provided in a jurisdiction where, in order for the Order to
be enforceable or consistent with local law or operational practice, additional
terms may be added to this Agreement or existing terms amended, those additional
or amended terms will be set out in an addendum to this Agreement. Except as set
forth in the preceding sentences of this Section 10.2, any amendment must be in
writing, signed by both Parties, and expressly state that it is amending this
Agreement.
Section 10.3 Assignment shall be supplemented by the following sentence:
“Neither Party may withhold its consent to the assignment, if there are
legitimate reasons for the assignment.”
Section 10.11 Applicable law and venue. Shall be deleted in its entirety and
replaced with the following: “This Agreement shall be governed in all respects
by the laws of the Federal Republic of Germany, excluding its provisions on
conflict of law. The Parties each irrevocably submit to the exclusive
jurisdiction of the Courts of Frankfurt am Main. English language shall be the
applicable language and prevailing translation of this Agreement. The Parties
waive their right to request an interpreter in the event of a court proceeding
in English.”
Section 4 Service Level Agreement of Exhibit 2, second sentence shall be deleted
in its entirety.
Section 1 Objectives of Exhibit 2A, last sentence shall be deleted in its
entirety.
Section 4.2 Latency of Exhibit 2A is amended to add the following at the end of
the first paragraph: “PacketFabric will inform Customer with one (1) month’s
prior notice by posting an amended Round-Trip Latency Metric Table on its
website and notifying the Customer in accordance with Section 10.1 of this
Agreement. The modified Round-Trip Latency Matric Table becomes binding if
Customer continues to use the agreed Services after the expiration of the
aforementioned notice period. Upon notification of such a modification, the
Customer is entitled to terminate this Agreement effective at the end of the
aforementioned notice period. PacketFabric will inform Customer of his
termination right in the notification of the modifications. If Customer objects
to the amended Round-Trip Latency Metric Table, PacketFabric has the right to
terminate this Agreement. If the Customer objects to the modifications and
PacketFabric does not terminate this Agreement, it will continue under the
original terms and conditions.”
Section 5.3 of Exhibit 2A shall be amended to delete the language: “Customer
shall be deemed to have waived its right to terminate under this Section 5 if it
fails to provide the requisite notice of termination within such thirty (30) day
period.” and “Customer is not eligible to exercise a termination right under
this Section 5 during any period in which it is in default of the T&Cs,
including without limitation, failure to pay undisputed amounts when due”.
Section 6 General Terms and Conditions of Exhibit 2A shall be amended to delete
the language: “If Customer fails to comply with these conditions, Customer will
have waived its right to any SLA Credits for that calendar month.”
Section 4 Service Level Agreement of Exhibit 3, last sentence shall be deleted
in its entirety.
Section 5 Termination by Customer for Convenience of Exhibit 3 shall be amended
to delete the language: “No such termination will be effective until Customer
has paid all amounts due and owing.”
Section 3 SLA Credits of Exhibit 3A shall be amended to delete subparagraph (b)
in its entirety and to delete subparagraph (c) in its entirety and replace it
with the following: “; or (c) its account is not in good financial standing with
PacketFabric.”
Section 4 Chronic Outage of Exhibit 3A shall be amended to delete the language:
“Customer shall be deemed to have waived its right to terminate under this
Section 4 if it fails to provide the requisite notice of termination within such
thirty (30) day period.”
Section 5 Outage Reporting Process of Exhibit 3A shall be amended to delete the
language: “(b) be current on all of its financial obligations with PacketFabric
under this Agreement” and “If Customer fails to comply with these conditions,
Customer will have waived its right to any SLA Credits for that calendar month.”
Section 5 Changes to our Acceptable Use Policy of Exhibit 4, sentence 2 shall be
deleted in its entirety and replaced with the following: “Any material changes
to this AUP will be provided to Customer in writing in accordance with the
notice provisions of this Agreement one (1) month before they take effect”, and
the entire Section 5 shall be supplemented after the 2nd sentence by adding the
following language: “The modified AUP becomes binding if Customer continues to
use the agreed Services after the expiration of the aforementioned notice
period. Upon notification of such a modification, the Customer is entitled to
terminate this Agreement effective at the end of the aforementioned notice
period. PacketFabric will inform Customer of his termination right in the
notification of the modifications. If Customer objects to the amended AUP,
PacketFabric has the right to terminate this Agreement. If the Customer objects
to the modifications and PacketFabric does not terminate this Agreement, it will
continue under the original terms and conditions.”
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Japan – For those Services provided in Japan, the following terms and conditions
apply and govern Customer’s receipt and use of the Services (“Japan Addendum”).
In the event of a conflict between the terms contained in the T&Cs (including
any Service Schedule and any Order Form) and the Japan Addendum, the Japan
Addendum shall control.
Section 2.2 Late Payments shall be deleted in its entirety and replaced with the
following: “If Customer does not pay all undisputed amounts by the due date,
PacketFabric may charge Customer interest on any unpaid amounts at a rate of
14.6 percent per annum.”
Section 6.3 Rights and obligations during a Suspension shall be amended to add
after “If PacketFabric suspends Customer’s right to access or use any portion or
all of the Services” the words “, in accordance with applicable laws or
provisions of Sections 6.1 or 6.2 hereof,”.
Section 8 WARRANTIES: LIMITATION OF LIABILITY
Section 8.2 shall be deleted in its entirety and replaced with the following:
“IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR, SPECIAL DAMAGES, ANY LOSS OF REVENUE, PROFITS
(EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, GOODWILL, OR
REPUTATION, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.”
Section 10.2 Modifications shall be deleted in its entirety and replaced with
the following: “PacketFabric may modify its policies at any time by posting a
revised version on PacketFabric’s website or the Portal or by notifying Customer
in accordance with Section 10.1, if (i) the modified terms conform to the
general interest of the Customer and (ii) the modified terms does not run afoul
of the purpose of this Agreement, and it is reasonable in light of the
circumstances concerning the modified terms such as the necessity of the
modifications, the appropriateness of the details of the modified terms, and any
other details of such modified terms. PacketFabric shall specify the time when
the modifications take effect, and make the intention to modify the terms, the
details of the modified terms, and the time when the modifications take effect
known by an appropriate method, such as using the internet. By continuing to use
the Services, Customer will be bound by such modified terms. If the Services are
to be provided in a jurisdiction where, in order for the Order to be enforceable
or consistent with local law or operational practice, additional terms may be
added to this Agreement or existing terms amended, those additional or amended
terms will be set out in an addendum to this Agreement. Except as set forth in
the preceding sentences of this Section 10.2, any amendment must be in writing,
signed by both Parties, and expressly state that it is amending this Agreement.”
Section 10.10 Applicable law and venue shall be deleted in its entirety and
replaced with the following: “This Agreement shall be governed by the laws of
Japan, excluding the provisions of conflict of law. The Parties irrevocably
submit to the exclusive jurisdiction of the Tokyo District Court. English
language shall be the applicable language and prevailing translation of this
Agreement.”
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Netherlands (Dutch law) – For those Services provided in the Netherlands, the
following terms and conditions shall apply and govern Customer’s receipt and use
of the Services (“Dutch Addendum”). In the event of a conflict between the terms
contained in the T&Cs (including any Service Schedule and any Order Form) and
the Dutch Addendum, the Dutch Addendum shall control.
Section 1.4 Service Term, the last sentence shall be deleted in its entirety and
replaced with the following: “Upon the expiration of the Service Term, each
Service will automatically extend on a month-to-month basis at an increase equal
to the Price Index for all consumer households rendered by the Central Bureau of
Statistics (CBS) when compared against the latest available base of the index.”
Section 2.2 Late Payments shall be deleted in its entirety and replaced with the
following: “If Customer does not pay all undisputed amounts by the due date,
PacketFabric may charge Customer interest (calculated on a daily basis) on any
unpaid amounts at a monthly rate equal to statutory interest for trade
agreements, according to Section 6:119a of the Dutch Civil Code (“Burgerlijk
Wetboek”).”
Section 2.5 shall be added and state: “Customer shall not be entitled to set off
any claim it may have against PacketFabric, whether under this Agreement or
otherwise”.
Section 6.1 Immediate and Temporary Suspension shall be deleted in its entirety
and replaced with the following: “In the event that Customer’s use of the
Services (a) poses an immediate and severe security risk to the Services or any
third-party; (b) could subject PacketFabric, its Affiliates, or any third-party
to liability; (c) could be fraudulent; (d) is in breach of the Agreement; or (e)
infringes any third party rights, in particular third party intellectual
property rights or data protection rights, PacketFabric may suspend Customer’s
access to or use of all or any portion or all of the applicable Services
immediately upon notice to Customer (which may be via a notification in the
Portal).
Section 8.3 and 8.4 Warranties: Limitation of Liability shall be deleted in
their entirety and replaced with the following:
8.3 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PACKETFABRIC, NOR ITS
AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PACKETFABRIC CAN CLAIM UNDER
INSURANCE, OR IN THE ABSENCE OF COVER UNDER INSURANCE, THE TOTAL AMOUNTS
ACTUALLY PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING
THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
LIABILITY.
8.4 THE LIMITATIONS PROVIDED IN SECTIONS 8.2 AND 8.3 DO NOT APPLY TO EITHER
PARTY’S OR ITS AFFILIATES’ GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR OTHER ACTION
OR OMISSION WHERE SUCH LIMITATION OR EXCLUSION WOULD BE PROHIBITED UNDER DUTCH
LAW, INDEMNITY OBLIGATIONS, BREACH OF CONFIDENTIALITY, CUSTOMER’S OBLIGATIONS
UNDER SECTION 3.2, NOR SHALL THEY BE INTERPRETED TO REDUCE CUSTOMER’S OBLIGATION
TO PAY THE FEES UNDER AN ORDER.
Section 8.6 shall be added and state: “Customer is solely responsible for
conducting the back-ups of its data transmitted when using the Services.
Customer is also solely responsible for saving any information required for
evidence, accounting or other purposes on a storage device independent of
PacketFabric’s Services.”
Section 10.2 Modifications shall be amended as follows: “PacketFabric may modify
its policies with one (1) month’s prior notice by posting a revised version on
PacketFabric’s website or the Portal and notifying Customer in accordance with
Section 10.1. Modified Terms become binding if Customer continues to use the
agreed Services after the expiration of the aforementioned notice period. Upon
notification of such a modification, Customer is entitled to terminate the
Agreement effective at the end of the aforementioned notice period. If Customer
objects to the amended policies, PacketFabric has the right to terminate the
Agreement. If Customer objects to the modifications and PacketFabric does not
terminate the Agreement, it will continue under the original terms and
conditions. Except as set forth in the preceding sentences of this Section 10.2,
any amendment must be in writing, signed by both Parties, and expressly state
that it is amending the Agreement.
Section 10.3 Assignment shall be supplemented by the following sentence at the
end of this Section: “which consent shall not be unreasonably withheld.”
Section 10.10 Applicable law and venue. Shall be deleted in its entirety and
replaced with the following: “This Agreement shall be governed in all respects
by the laws of the Netherlands. The Parties irrevocably submit to the exclusive
jurisdiction of the Courts in Amsterdam.”
Section 4.2 Latency of Exhibit 2A is amended to add the following at the end of
the first paragraph: “PacketFabric will inform Customer with one (1) month’s
prior notice by posting an amended Round-Trip Latency Metric Table on its
website and notifying the Customer in accordance with Section 10.1 of this
Agreement. The modified Round-Trip Latency Matric Table becomes binding if
Customer continues to use the agreed Services after the expiration of the
aforementioned notice period. Upon notification of such a modification, the
Customer is entitled to terminate this Agreement effective at the end of the
aforementioned notice period. If Customer objects to the amended Round-Trip
Latency Metric Table, PacketFabric has the right to terminate the Agreement. If
the Customer objects to the modifications and PacketFabric does not terminate
this Agreement, it will continue under the original terms and conditions.”
Section 5.3 of Exhibit 2A shall be amended to delete the language: “Customer
shall be deemed to have waived its right to terminate under this Section 5 if it
fails to provide the requisite notice of termination within such thirty (30) day
period.” and “Customer is not eligible to exercise a termination right under
this Section 5 during any period in which it is in default of the T&Cs,
including without limitation, failure to pay undisputed amounts when due”.
Section 5 Changes to our Acceptable Use Policy of Exhibit 4 sentence 2 shall be
deleted in its entirety and replaced with the following: “Any material changes
to this AUP will be provided to Customer in writing in accordance with the
notice provisions of this Agreement one (1) month before they take effect”, and
the entire Section 5 shall be supplemented after the 2nd sentence by adding the
following language: “The modified AUP becomes binding if Customer continues to
use the agreed Services after the expiration of the aforementioned notice
period. Upon notification of such a modification, the Customer is entitled to
terminate the Agreement effective at the end of the aforementioned notice
period. If Customer objects to the amended AUP, PacketFabric has the right to
terminate the Agreement. If the Customer objects to the modifications and
PacketFabric does not terminate the Agreement, it will continue under the
original terms and conditions.”
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United Kingdom – For those Services provided in the United Kingdom, the
following terms and conditions shall apply and govern Customer’s receipt and use
of the Services (“UK Addendum”). In the event of a conflict between the terms
contained in the T&Cs (including any Service Schedule and any Order Form) and
the UK Addendum, the UK Addendum shall control.
Section 8.2 and Section 8.3 shall be preceded with the following: “Subject
always to Section 8.6”.
Section 8.6 shall be added and state: “Nothing contained in this Agreement shall
have the effect of excluding either Party’s liability for death or personal
injury as a result of its negligence, fraud, fraudulent misrepresentation, or
any other liability that cannot be excluded by the Parties pursuant to English
law.”
Section 10.10 Applicable law and venue shall be deleted in its entirety and
replaced with the following: “This Agreement and any dispute or claim arising
out of or in connection with its subject matter or formation is governed by and
shall be construed in accordance with the laws of England and Wales, and the
United Nations Convention on the International Sale of Goods will not apply.
Each party irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim arising out of or in
connection with this agreement or its subject matter or formation (including
non-contractual disputes or claims).”
Section 10.13 Entire Agreement shall be deleted in its entirety and replaced
with the following: “This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior or contemporaneous representations,
assurances, warranties (whether innocent or negligent), understandings,
agreements, or communications between the Parties, whether written or verbal,
regarding the subject matter of this Agreement. The Customer has not entered
into this Agreement in reliance upon, and it will have no remedy in respect of,
any misrepresentation, representation or statement (whether made by PacketFabric
or any other person and whether made to the Customer or any other person).”
Section 11 Definitions shall be supplemented with the following: “A “person”
includes a natural person, corporate or unincorporated body (whether or not
having separate legal personality) and that person’s personal representatives,
successors and permitted assigns, and any reference to ‘laws’ and ‘regulations’
in these T&Cs shall be construed to include any laws, regulations and legally
binding rules and codes of conduct according to the law of England and Wales,
which, in each case, applies to a Party or which relates to the subject matter
of this Agreement and which is in force from time to time.”
Section 10.7 No third-party beneficiaries shall be deleted in its entirety and
replaced with the following: “Contracts (Rights of Third Parties) Act 1999. A
person or entity who is not a party to either this Agreement or the Order shall
not have the rights under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Agreement or the Order.”
Exhibit 2
Transmission Services Schedule
1. Services. This Service Schedule describes Core Services and Type 2 Services.
“Core Services” means a physical port on equipment owned by PacketFabric, or a
virtual circuit, that provides direct connectivity to Customer’s equipment and
does not include any ancillary Type 2 Services. “Type 2 Services” means services
procured by PacketFabric from a third-party service provider on Customer’s
behalf, including, for example, local access services from a Customer’s premise
to a PacketFabric point-of-presence (“POP”), cross-connects within a data
center, or other network service provider offers integrated into the Portal.
2. Provisioning of Core Services. Upon execution of an Order for Core Services,
Customer is responsible for activating its account in the Portal and ordering
the Core Services. Customer may need to obtain cross-connect services from the
applicable data center provider in order to use the Core Services. The ordering,
payment, and disconnection of cross-connects is Customer’s responsibility and
will not alter the Billing Start Date for the Core Services. The Billing Start
Date is the date the Core Services become available for Customer’s use.
3. Provisioning of Type 2 Services. Delivery of Type 2 Services is dependent on
the third-party service provider; PacketFabric will work with Customer and the
third-party service provider to coordinate desired delivery timelines, but
PacketFabric is not responsible for any delays caused by Customer or the
third-party service provider. Where an Order also includes Type 2 Services, the
Billing Start Date for any Services dependent on Type 2 Services will be the
same date as the associated Type 2 Services. The Billing Start Date for Type 2
Services is the date Services are available for Customer’s use.
4. Service Level Agreement (“SLA”). PacketFabric will provide Core Services, in
accordance with the SLA in Exhibit 2A. PACKETFABRIC MAKES NO GUARANTEE THAT ANY
SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. Customer’s sole and exclusive
remedy for any Service Outage (other than chronic Outages as set forth in
Section 5 of the SLA) shall be SLA Credits. The SLA and PacketFabric’s
obligations under the SLA shall not apply to Type 2 Services.
5. Customer Data. All of the Transmission Services involve Ethernet
transmission of Customer Data. PacketFabric does not access Customer Data, nor
does it utilize technology to intercept, record or capture Customer Data. Given
that PacketFabric does not have access to Customer Data, Customer is solely
responsible for its content, protection, and encryption. In order for Customer
Data to be transmitted to a recipient, it must contain routing instructions such
as IP addresses and packet header information which PacketFabric’s system uses
to create a communication channel between the sender and the recipient of such
Customer Data. The Customer’s routing instructions used to route the Customer
Data is deleted immediately after the communication channel between the sender
and recipient is terminated. PacketFabric does not assume any obligations with
respect to Customer Data other than as expressly set forth in this Transmission
Services Schedule or this Agreement or as required by applicable law.
6. Customer’s Personal Information. Customer’s use of the Portal will require
Customer to input information related to Customer’s authorized representatives,
contact information, and billing information. If Customer uses the Portal to
manage or order Services, PacketFabric will adhere to all security and privacy
laws required for such information.
7. Termination by Customer for Convenience. Customer may terminate a
Transmission Service for convenience at any time during its Service Term,
subject to the early termination charge as contemplated by Section 7.2. No such
termination will be effective if there are outstanding invoices the Customer has
not paid. When requesting to disconnect a Transmission Service, Customer is
responsible for delivering a disconnect completion notice as instructed by
PacketFabric for any and all cross-connects related to that Transmission
Service; Customer will continue to be charged for the applicable Transmission
Service until the related cross-connect is disconnected.
7.1 Month-to-Month Order. An Order having a one-month initial period, or in
month-to-month renewal status, may be terminated or reduced anytime, with 30
days’ notice, without any early termination charge.
7.2 Orders of more than one month. Unless otherwise agreed in writing, if
Customer terminates or reduces the quantities of any Transmission Service
included in an Order whose initial period is more than one month prior to the
end of the initial period, Customer shall pay an early termination charge equal
to 100% of the remaining balance of fees due for such Transmission Service for
the remainder of the initial period.
Exhibit 2A
Transmission Services Schedule Service Level Agreement
1. OBJECTIVES
This SLA sets out the specific terms and conditions of service level reliability
and performance metrics for the Core Services provided by PacketFabric to the
Customer pursuant to this Agreement and an Order. This SLA also establishes any
remedies which may be available to the Customer should those metrics not be met.
Customer understands and acknowledges that the remedies set out in this SLA are
the sole and exclusive remedies with respect to any claim in any way related to
or arising from any delay, Outage, degradation, or non-compliance of the Core
Services.
2. DEFINITIONS
“Access Port” is defined as a specific network interface on the PacketFabric
network, which is utilized exclusively to connect a specific Customer to the
PacketFabric platform.
“Availability” (or “Available”) is defined as the ability of Customer to pass
unerrored data packets across the PacketFabric network between any two specified
PacketFabric Access Ports, as measured by PacketFabric, or if applicable, as
documented by the report of an issue via a Customer trouble ticket.
“Availability Zone” is defined as a specific device or set of devices linked
together to behave as one device, within which any Access Ports would share a
common failure domain. PacketFabric defines and operates multiple Availability
Zones at each location throughout its network, to ensure Customer has the
opportunity to obtain redundant connections to the PacketFabric network.
“Core Location” is defined as any specific Service Location that is connected
via the PacketFabric Core Network to at least two additional Service Locations.
“Core Network” is defined as the network infrastructure and equipment which is
operated by PacketFabric for the purposes of connecting one Core Location to
another.
“Diverse Service” is defined as a Core Service which utilizes two (2) or more
Access Ports, each from a different Availability Zone, at each Service Location
where the applicable Core Service is delivered, as further detailed in Section
3.
“Emergency Maintenance” is a maintenance activity for which normal Scheduled
Maintenance notice cannot be given, due to an event impacting a Core Service
which requires more immediate attention.
“Jitter” is defined as the average variation in Latency between successive
packets sent between the same endpoints throughout the Service Month.
“Latency” is defined as the maximum round-trip time required for a data packet
to route PacketFabric’s Core Network between any two specific endpoints during
any five-minute sample period, as averaged throughout the Service Month.
“Non-Diverse Service” is defined as a Core Service which is not or cannot be
diverse, such as a single Access Port, or a Core Service which is connected to
only a single Access Port or a single Availability Zone within any Service
Location where the Core Service is delivered.
“Packet Loss” is defined as the ability to successfully deliver some but not all
packets between two specific endpoints during a five-minute sample period.
Packet Loss is measured as the percentage of packets which could not be
successfully delivered relative to the total number of packets for which
delivery was attempted, as averaged throughout the Service Month.
“Percent Availability” is calculated with the formula “A/M*100”, where A is the
total number of minutes during the month for which the Service was Available,
and M is the total number of minutes in the month.
“Scheduled Maintenance” is defined as any work PacketFabric performs on the Core
Services for which PacketFabric has provided Customer at least ten (10) days’
prior written notice.
“Service Location” is defined as any specific location where PacketFabric offers
Access Ports for the purposes of providing Core Services to its customers.
“Service Month” is defined as the beginning and end dates of Customer’s monthly
billing cycle for the applicable Core Service.
“Service Outage” or “Outage” is defined as a period of time, measured to the
nearest whole minute, for which a Core Service is not Available.
“SLA Credit” is defined to be a percentage of discount against the MRC of the
affected Core Service, to be credited to the Customer against the monthly
invoice for the affected Core Service on the next billing cycle following the
date on which the Outage occurred. If a single Outage triggers an SLA Credit
under multiple SLA measurements (for example, Availability and Packet Loss), the
measurement with the largest eligible SLA Credit shall apply.
3. SERVICE DESCRIPTION
PacketFabric’s Core Services allows Customer to configure and control an
on-demand virtual packet-based network, enabling data connectivity between any
two or more endpoints in a secure, private, and reliable fashion across
PacketFabric’s private software-defined network.
Customer connects to the PacketFabric network via one (1) or more Access Ports,
which are utilized to deliver connectivity services. For each Access Port,
additional services may be purchased, for example, dedicated transport or
virtual circuits. For the purposes of this SLA, the Access Port and any
additional services which are purchased for the use of the Access Port are
considered one Core Service, and any one individual Access Port is considered a
Non-Diverse Service.
Customer may purchase PacketFabric’s Cloud Router Service which is a Layer 3
routing service that joins two (2) or more virtual circuits into a single
routing domain enabling IP traffic to be exchanged between them. An individual
Cloud Router Service is considered a Non-Diverse Service.
Customers may choose to purchase additional components of Core Services which
connect an Access Port to one (1) or more other Access Ports, which may be
either purchased by Customer, or associated with other customers or users or
endpoints on the PacketFabric platform. If Customer wishes to enhance the
reliability of the Core Service on the PacketFabric Network it may choose to
purchase Diverse Services, which must be connected and properly configured to at
least two (2) or more Access Ports, each from a different Availability Zone,
within each Service Location where the Core Service is provided. Any such
properly configured Core Service is considered a Diverse Service.
4. SERVICE LEVEL METRICS
4.1 Availability
PacketFabric is committed to delivering Availability of at least 99.999% on its
Core Network for each Service Month. Furthermore, PacketFabric offers an
additional Availability metric for any component of the Core Services that
provides connectivity between two (2) or more Access Ports for each Service
Month: the Availability of a Diverse Service is 99.99%, while the Availability
of a Non-Diverse Service is 99.9%.
In the event that these Availability performance metrics cannot be met in a
Service Month, the following table(s) shall define the amount of SLA credit the
Customer is entitled to receive for each such Service Month:
Core Network AvailabilityCore Network Unavailability DurationSLA Credit>=99.862
<99.999%26 seconds – 1 hour10% of MRC>=99.445 <99.862%1 hours – 4 hours20% of
MRC>=98.889 <99.445%4 hours – 8 hours30% of MRC>=98.334 <98.889%8 hours – 12
hours40% of MRC>=96.667 <98.334%12 hours – 24 hours60% of MRC<96.667%More than
24 hours100% of MRC
AvailabilityService Component UnavailabilityDiverse Service SLA
CreditNon-Diverse SLA Credit>=99.901 <99.999%4 minutes – 43 minutes15% of MRC0%
of MRC>=99.445 <99.901%43 minutes – 4 hours25% of MRC10% of MRC>=98.889
<99.445%4 hours – 8 hours35% of MRC20% of MRC>=98.334 <98.889%8 hours – 12
hours50% of MRC30% of MRC>=96.667 <98.334%12 hours – 24 hours75% of MRC50% of
MRC<96.667%More than 24 hours100% of MRC100% of MRC
4.2 Latency
PacketFabric is committed to delivering a reliable, low-Latency service, with
guaranteed and predictable performance. To that end, and to accommodate
PacketFabric’s ongoing market expansion, PacketFabric maintains a Round -Trip
Latency Metric Table on its website, that is incorporated by reference into this
SLA, as amended by PacketFabric, in its sole discretion, from time to time.
In the event that the performance metrics set forth in the Latency Metric Table
cannot be met in a Service Month, the following table(s) shall define the amount
of SLA Credit the Customer is entitled to receive for each such Service Month:
Percent of Month Latency Metric ExceededSLA Credit10%10% of MRC20%20% of
MRC30%30% of MRC50%40% of MRC75%50% of MRC100%60% of MRC
4.3 Packet Loss
PacketFabric is committed to delivering a reliable, high-performance service,
free from unnecessary Packet Loss which could impact Core Service quality.
Network Packet Loss across the PacketFabric Core Network for each Service Month
shall be equal to or lower than the corresponding value below.
Monthly Packet Loss MetricValueNorth America< 0.1%Europe< 0.1%Australia<
0.1%Trans-Atlantic< 0.1%Trans-Pacific < 0.1%
In the event that the performance metrics set forth in the table above cannot be
met in a Service Month, the following table shall define the amount of credit
the Customer is entitled to receive for each such Service Month:
Percent of Monthly Packet Loss Metric ExceededSLA Credit10%10% of MRC25%20% of
MRC50%30% of MRC75%40% of MRC100%50% of MRC
*For example, 10% of .1% = .01%.
4.4 Jitter
PacketFabric is committed to delivering a reliable, high-performance service,
free from unnecessary jitter which could impact Core Service quality. Network
jitter performance for each Service Month should be equal to or better than the
target performance metrics below.
Average Jitter MetricValueNorth America< 2msEurope< 2msAustralia<
2msTrans-Atlantic< 2msTrans-Pacific < 2ms
In the event that the performance metrics set forth in the table above cannot be
met in a Service Month, the following table shall define the amount of credit
the Customer is entitled to receive for each such Service Month:
Percent of Monthly Jitter Metric ExceededSLA Credit10%10% of MRC25%20% of
MRC50%30% of MRC75%40% of MRC100%50% of MRC
*For example, 10% of 2 ms = 0.2 ms.
5. TERMINATION FOR CHRONIC OUTAGES
5.1 For Diverse Services, if Customer experiences three (3) or more Outages
affecting the same Core Service, each lasting for more than thirty (30) minutes
during any thirty (30) day period, or more than twenty-four (24) hours in the
aggregate during the Service Month, Customer may choose to terminate the
impacted Core Services without any further liability to PacketFabric. Customer
understands and acknowledges that its right to terminate impacted Core Services
under this Section 5.1 does not grant Customer any right to terminate any Type 2
Services or any non-impacted Core Services, even if such Type 2 Services or
non-impacted Core Service are included in the same Order as the impacted Core
Services.
5.2 For Non-Diverse Services, if Customer experiences three (3) or more Outages
affecting the same Service, each lasting for more than twelve (12) hours during
any thirty (30) day period, or more than forty-eight (48) hours in the aggregate
during the Service Month, Customer may choose to terminate the impacted Core
Services without any further liability to PacketFabric.
5.3 In order to exercise the right to termination under this Section 5, Customer
must notify PacketFabric in writing within thirty (30) days after the event
giving rise to the right of termination. Customer shall be deemed to have waived
its right to terminate under this Section 5 if it fails to provide the requisite
notice of termination within such thirty (30) day period. In the event that
Customer exercises this termination option, Customer shall remain obligated to
pay for the Core Services as rendered through the effective date of termination.
Customer is not eligible to exercise a termination right under this Section 5
during any period in which it is in default of the T&Cs, including without
limitation, failure to pay undisputed amounts when due.
6. GENERAL TERMS AND CONDITIONS
To be eligible for SLA Credit(s), Customer must: (a) open a support ticket at
the time the affected Core Service failed to meet one or more Service levels set
forth in this SLA by contacting Customer support at the contact information
provided on the website located here; (b) be current on all of its financial
obligations with PacketFabric under this Agreement; and (c) provide PacketFabric
with a written request for SLA Credit within thirty (30) days following the end
of the month in which the Outage occurred. The written request must include: (i)
Customer’s name; (ii) the circuit identification number for the affected Core
Service; (iii) the support ticket number issued by PacketFabric; and (iv) the
duration of the Outage. If Customer fails to comply with these conditions,
Customer will have waived its right to any SLA Credits for that calendar month.
Upon receipt of Customer’s request for an SLA Credit, PacketFabric will
investigate the claim under the terms described herein.
7. MAINTENANCE
From time to time, PacketFabric will conduct maintenance activities on its
network infrastructure. Notification of any such activities will be delivered to
the contact(s) specified in the Portal. It is the Customer’s responsibility to
ensure its maintenance contact information is up to date.
7.1 Scheduled Maintenance – All Scheduled Maintenance shall occur between the
hours of 12:00 am and 6:00 am in the local time-zone of the maintenance. No more
than five (5) Scheduled Maintenance activities shall be conducted on any one
Core Service during a Service Month, and the collective Outage time for the
Service Month shall not exceed twelve (12) hours.
7.2 Emergency Maintenance – No more than two (2) Emergency Maintenance
activities shall be conducted on any one Core Service during a Service Month,
and the collective Outage time shall not exceed four (4) hours.
8. EXCLUSIONS AND LIMITATIONS
8.1 The cumulative SLA Credits during any Service Month shall not exceed 100% of
the MRC of the affected Core Service(s).
8.2 SLA Credits will not be issued where the target performance measure is not
met as a result of:
a) Scheduled Maintenance or planned enhancements or upgrades to the Core
Network;
b) Customer exceeds the maximum capacity of a port connection, or any other rate
limitation as set forth in the applicable Order;
c) Interruptions of a Core Service for which the Service Term has not yet
commenced;
d) The acts or omissions of Customer or its employees, contractors, agents,
authorized invitees, successors or assigns, or anyone else for whom Customer is
responsible;
e) The failure or malfunction of any network elements, equipment, applications,
services, or systems not owned or controlled by PacketFabric, including without
limitation, cross-connects, local loops, or other third-party access services;
f) Maintenance periods as permitted under Section 7, any other planned
activities coordinated with Customer or requested by Customer, including
Customer-requested alterations to the applicable Core Service;
g) The unavailability of required Customer personnel, including as a result of
failure to provide PacketFabric with accurate, current contact information;
h) The configuration, failure or malfunction of non-PacketFabric equipment or
systems;
i) Interruptions caused by the negligence, error or omission of Customer or
others authorized by Customer to access, use or modify the Core Service or
equipment used by Customer;
j) Lack of access to the premises where reasonably required in order to restore
the applicable Core Service;
k) interruptions resulting from incorrect, incomplete or inaccurate Orders from
Customer (including without limitation Customer’s over-subscription of
circuits);
l) Customer requested special non-standard configured Core Services, even if
said configurations are mutually agreed to by PacketFabric and Customer;
m) interruptions due to Customer-initiated requests to disconnect an existing
Core Service and install a new Core Service, including but not limited to
changes, upgrades and moves;
n) PacketFabric’s termination of a Core Service for cause or Customer’s use of a
Core Service in an unauthorized or unlawful manner;
o) interruptions due to power failure at Customer’s premises;
p) security breaches that are beyond PacketFabric’s reasonable control,
including, but not limited to denial of service attacks, viruses, etc.
q) Customer’s failure to release the applicable Core Service for testing or
repair, and continuing to use the applicable Core Service on an impaired basis;
r) PacketFabric’s termination or suspension of the Core Service for Customer’s
default or as otherwise allowed for under the T&Cs;
s) Customer’s use of the Core Services in an unauthorized or unlawful manner or
in a manner in breach of the terms of this Agreement;
t) Customer’s request to keep a trouble ticket open after PacketFabric has
confirmed that the applicable Core Service is Available;
u) Force majeure events as set forth in Section 10.14 of the T&Cs; and
v) Any other cause not within PacketFabric’s reasonable control.
The time period for which a Core Service is not Available due to any of the
exceptions set forth in Section 8.2(a)-(v) shall also be excluded from any
calculations associated with Outages.
Exhibit 3
IP Transit Services Schedule
1. Services. This Service Schedule describes the IP Transit Service(s) delivered
over PacketFabric’s Internet protocol (“IP”) network. The term “IP Transit
Service(s)” means the Customer’s use of PacketFabric’s high-performance IP
network for purposes of exchanging data traffic with endpoints on the public
Internet. Additionally, the IP Transit Service(s) specifically includes a
license of an IP Address, as more specifically discussed in Section 2. The Order
containing the IP Transit Service(s) will set out the Demarcation Point(s)
(defined below) and the bandwidth.
2. IP Address Licensing. In connection with Customer’s purchase of IP Transit
Service(s), PacketFabric will provide Customer a License to use those IPv4
addresses provided in an Order (“IP Addresses”) for the duration of the Service
Term. The term “License” is defined as a limited, personal, non-transferable,
non-exclusive, revokable, and non-sublicensable license to use the IP Addresses
for the duration of the Service Term. PacketFabric is the sole owner of all
PacketFabric IP Addresses, and nothing contained in this IP Transit Services
Schedule or this Agreement can be interpreted to convey ownership to the
Customer. Upon expiration of the Service Term, or termination of Services for
any reason, the right to use the PacketFabric IP Addresses expires and reverts
back to PacketFabric.
3. Installation of Service. PacketFabric will use reasonable efforts to install
the IP Transit Service(s) on Customer’s desired installation date; however,
PacketFabric does not guarantee that IP Transit Service(s) will be installed and
provisioned on such date. Customer will provide all information, authorizations,
and access required by PacketFabric for the purpose of performing installation,
maintenance, and repair of the IP Transit Service(s) on PacketFabric’s Network.
3.1 “Billing Start Date” for IP Transit Service(s) is the date PacketFabric
delivers IP Transit Service(s) to the Demarcation Point and occurs per IP
Transit Service(s), per location, when PacketFabric completes its installation
of each applicable IP Transit Service. Upon the occurrence of the Billing Start
Date, PacketFabric may commence billing and Customer shall be liable for payment
for those IP Transit Service(s) installed. For sake of clarity, this means that
some of the Services ordered under the same Order may commence billing prior to
other Services in the same Order, thus resulting in Customer paying a
proportionate share of the MRC quoted in the applicable Order.
3.2 “Demarcation Point” is the location where PacketFabric’s facilities
interconnect with Customer’s or any third party’s facilities. Any facilities,
fiber, equipment, or rights located on PacketFabric’s side of the Demarcation
Point will be maintained, repaired, operated, controlled, and at all times
remain the sole and exclusive property of PacketFabric. Any facilities, fiber,
equipment, or rights located on Customer’s side of the Demarcation Point will be
maintained, repaired, operated, controlled, and at all times remain the sole and
exclusive property of Customer (“Customer Equipment”). Customer must procure and
maintain, at its sole cost and expense, Customer Equipment which is technically
compatible with the IP Transit Service(s) delivered.
3.3 Customer Responsibility. It is Customer’s responsibility to ensure all the
work on its side of the Demarcation Points is completed prior to the desired
start date of the Service Term for applicable IP Transit Service. This includes,
but is not limited to, Customer securing its own rights and related costs to
access, occupy, and conduct typical telecommunication operations, which may
include the need to secure construction permits and underlying rights, access
agreements, access fees, lateral fees, riser fees, cross-connects, coordination
at any third party owned location, and, where applicable, necessary space for
PacketFabric’s fiber termination panel.
4. Service Level Agreement (“SLA”). PacketFabric will provide the IP Transit
Service(s) in accordance with the SLA in Exhibit 3A. Any obligations of
PacketFabric under the SLA in Exhibit 3A are limited to IP Transit Service(s)
provided over PacketFabric’s controlled physical network infrastructure, also
referred to as PacketFabric’s Network. PACKETFABRIC MAKES NO GUARANTEE THAT ANY
IP TRANSIT SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. Customer’s sole and
exclusive remedy for any Outage (other than chronic Outages as set forth in
Section 4 of the SLA) shall be SLA Credit(s).
5. Termination by Customer for Convenience. Customer may terminate an IP Transit
Service for convenience at any time during its Service Term set out in the
Order, subject to the early termination charge, if any, specified below. No such
termination will be effective until Customer has paid all amounts due and owing.
When requesting to disconnect an IP Transit Service, Customer is responsible for
delivering a disconnect completion notice for any and all cross-connects related
to that IP Transit Service; Customer will continue to be charged for the
applicable IP Transit Service until the related cross-connect is disconnected.
5.1 Month-to-Month Order. An Order having a one-month initial period, or in
month-to-month renewal status, may be terminated or reduced anytime, with 30
days’ notice, without any early termination charge.
5.2 Orders of more than one month. Unless otherwise agreed in writing, if
Customer terminates or reduces the quantities of any IP Transit Service included
in an Order whose initial period is more than one month prior to the end of the
initial period, Customer shall pay an early termination charge equal to 100% of
all amounts due for the applicable IP Transit Service(s) for the remainder of
the initial period.
Exhibit 3A
IP Transit Services Schedule Service Level Agreement
1. Definitions.
a) “Availability” (or “Available”) is defined as the ability of Customer to pass
unerrored data packets across PacketFabric’s Network between any two specified
Demarcation Points, as measured by PacketFabric, or if applicable, as documented
by the report of an issue via a Customer trouble ticket.
b) “Emergency Maintenance” is a maintenance activity for which normal Scheduled
Maintenance notice cannot be given, due to an event impacting an IP Transit
Service which requires more immediate attention.
c) “Latency” is defined as the maximum round-trip time required for a data
packet to route PacketFabric’s Network between any two specific endpoints during
any five-minute sample period, as averaged throughout the Service Month.
d) “Network Latency” is defined as the average time taken for an IP packet to
make a round trip between routers on PacketFabric’s Network.
e) “PacketFabric’s Network” means the points between the Demarcation Points
which are owned and operated by PacketFabric. These points are also known within
the industry as those paths which are on-net to PacketFabric and not paths owned
by third parties.
f) “Packet Loss” is defined as the percentage of packets that are dropped within
PacketFabric’s Network. It is measured by comparing packet counts transmitted
and received between router pairs on PacketFabric’s Network.
g) “Percent Availability” is calculated with the formula “A/M*100”, where A is
the total number of minutes during the month for which the Service was
Available, and M is the total number of minutes in the month.
h) “Scheduled Maintenance” is defined as any work PacketFabric performs on the
IP Transit Service(s) for which PacketFabric has provided Customer at least ten
(10) days’ prior written notice.
i) “Service Month” is defined as the beginning and end dates of Customer’s
monthly billing cycle for the applicable IP Transit Service.
j) “Service Outage” or “Outage” is defined as a period of time, measured to the
nearest whole minute, for which the Service was not Available to Customer.
k) “SLA Credit” is defined to be a percentage of discount against the MRC of the
affected IP Transit Service, to be credited to the Customer against the monthly
invoice for the affected IP Transit Service on the next billing cycle following
the date on which the Outage occurred. If a single Outage triggers an SLA Credit
under multiple SLA measurements (for example, Availability and Packet Loss), the
measurement with the largest eligible SLA Credit shall apply. In no event will
the SLA Credit for a given month exceed the MRC associated with the affected IP
Transit Service.
2. Service Levels. PacketFabric is committed to providing a reliable,
high-quality IP Transit Service. As part of this commitment, PacketFabric offers
the following service levels.
a) Network Availability SLA – PacketFabric provides 99.95% Availability, as
calculated from the ingress to and egress of PacketFabric’s backbone network,
and does not include any third-party local loops, whether managed by
PacketFabric or any other party. This Availability SLA is an average percentage
of time during a calendar month when a particular IP port is able to transmit
and receive data, thereby causing the IP Transit Service to be Available. In the
event an IP Transit Service does not meet the 99.95% Availability objective in a
Service Month, on receipt of a valid written claim, Customer will be credited
the amount of one full day of the applicable IP Transit Service’s MRC.
b) Metro Network Latency SLA – PacketFabric provides an average Latency over a
one-month period of less than 15 milliseconds within any designated metropolitan
area (“Metro Network Latency”). PacketFabric monitors aggregate Latency within
metropolitan areas by monitoring round-trip times between routers on
PacketFabric’s Network at regular (normally 5 minute) intervals. After being
notified in writing by Customer of Metro Network Latency in excess of 15
milliseconds, PacketFabric will use commercially reasonable efforts to determine
the source of such excess Network Latency and to correct such problem to the
extent that the source of the problem is on PacketFabric’s Network. In the event
the average Metro Network Latency exceeds 15 milliseconds in a Service Month,
and on receipt of a valid written claim, PacketFabric will pay an SLA Credit of
four percent of the MRC(s) for the affected metropolitan area for the applicable
Service Month.
c) Network Latency SLA – PacketFabric provides Network Latency performance by
region listed in the table below. If the Customer notifies PacketFabric in
writing of Network Latency in excess of those targets listed below, of at least
15 milliseconds, PacketFabric will use commercially reasonable efforts to
determine the source of such excess Network Latency and will correct such
problem to the extent that the source of the problem is on PacketFabric’s
Network. In the event the average Network Latency exceeds the “Monthly
Measurement Target” milliseconds in a standard billing period, and on receipt of
a valid written claim, PacketFabric will pay an SLA Credit of four percent of
the MRC(s) for the affected region for the applicable Service Month. Network
Latency performance SLA measures performance on PacketFabric’s Network and does
not include access circuits or services to the PacketFabric Network.
Network Latency delay is measured by sending 10 test packets of 100 bytes every
5 minutes, 24 hours a day between a node on PacketFabric’s Network, designated
by PacketFabric, to a destination node and measures the time it takes for all
test packets to be sent and received in one month. If there is a choice of
route, results from the fastest are used. The results for each hour are averaged
and stored. At the end of each month the hourly results are averaged. The
designated points of presence (“PoPs”) on PacketFabric’s Network used for the
standard SLA measurements for Network Latency may or may not be the PoPs on
PacketFabric’s Network which Customer’s site(s) is connected to.
RegionMonthly Measurement TargetTransatlantic95msEurope45msAmericas150msAsia
Pacific250msAfrica350msTranspacific300ms
d) Packet Delivery SLA – PacketFabric’s Network has an average monthly Packet
Loss no greater than 0.1% (or successful delivery of at least 99.9% of packets).
PacketFabric monitors aggregate packet loss within PacketFabric’s Network on an
ongoing basis and compiles the collected data into a monthly average packet loss
measurement for PacketFabric’s Network. After being notified by Customer in
writing of Packet Loss in excess of 0.1%, PacketFabric will use commercially
reasonable efforts to determine the source of such excess Packet Loss and to
correct such problem to the extent that the source of the problem is on
PacketFabric’s Network.
3. SLA Credits. Subject to the terms, exclusions and restrictions described
herein, the disruption of an IP Transit Service in excess of the SLA target(s)
set forth in Section 2 is an Outage. An affected IP Transit Service is any IP
Transit Service that does not meet one or more SLA’s set forth in Section 2.
Customer may be entitled to an SLA Credit as a result of the percentage of time
during a calendar month an affected IP Transit Service experiences an Outage. An
Outage commences upon Customer’s verifiable written reporting of the Outage with
the opening of a support ticket at the time the affected IP Transit Service
failed to meet one or more SLA’s set forth in Section 2. Each Outage ends upon
restoration of the affected IP Transit Service as evidenced by appropriate
network tests by PacketFabric.
a) Customer cannot request Service Credits that exceed the equivalent of one
month MRC for the affected IP Transit Service. Only those IP Transit Service(s)
that experienced an Outage will receive a credit. Within sixty (60) days of
Customer’s submitted SLA Credit request, if approved, the applicable SLA
Credit(s) will be reflected on the next monthly invoice for the affected IP
Transit Service.
b) Except as set forth in Section 4, SLA Credits are Customer’s sole and
exclusive remedy in the event of an Outage or other disruption of an IP Transit
Service. In the event PacketFabric fails to meet several service levels during a
single event for a particular IP Transit Service, Customer shall only be
entitled to one of the applicable
c) SLA Credits for the impacted IP Transit Service. If Customer has multiple IP
Transit Services from PacketFabric, Customer can request SLA Credits only for
the affected IP Transit Service and cannot request SLA Credits for any other
non-affected IP Transit Services.
No SLA Credit is available to Customer if: (a) it is blocking PacketFabric from
monitoring Customer’s equipment; (b) it does not provide the necessary access to
its personnel, facilities, or premises to enable PacketFabric to perform
comprehensive troubleshooting; or (c) its account is not in good financial
standing with PacketFabric.
4. Chronic Outage. In the event that Customer experiences three (3) or more
Outages affecting the same IP Transit Service, each lasting for more than twelve
(12) hours during any thirty (30) day period, or more than forty-eight (48)
hours in the aggregate during the Service Month, Customer may choose to
terminate the impacted IP Transit Services without any further liability to
PacketFabric (“Chronic Outage Remedy”). In order to exercise the Chronic Outage
Remedy right to termination under this Section 4, Customer must notify
PacketFabric in writing within thirty (30) days after the event giving rise to
the right of termination. Customer shall be deemed to have waived its right to
terminate under this Section 4 if it fails to provide the requisite notice of
termination within such thirty (30) day period. In the event that Customer
exercises this Chronic Outage Remedy, Customer shall remain obligated to pay for
the terminated IP Transit Service(s) as rendered through the effective date of
termination.
5. Outage Reporting Process. To be eligible for SLA Credit(s), Customer must:
(a) open a support ticket at the time the affected IP Transit Service failed to
meet one or more Service levels set forth in this SLA by contacting Customer
support at the contact information provided on the website located here; (b) be
current on all of its financial obligations with PacketFabric under this
Agreement; and (c) provide PacketFabric with a written request for SLA Credit
within thirty (30) days following the end of the month in which the Outage
occurred. The written request must include: (i) Customer’s name; (ii) the
circuit identification number for the affected IP Transit Service; (iii) the
support ticket number issued by PacketFabric; and (iv) the duration of the
Outage. If Customer fails to comply with these conditions, Customer will have
waived its right to any SLA Credits for that calendar month. Upon receipt of
Customer’s request for an SLA Credit, PacketFabric will investigate the claim
under the terms described herein.
6. Maintenance. From time to time, PacketFabric will conduct maintenance
activities on its network infrastructure. Notification of any such activities
will be delivered to the contact(s) specified in the Portal. It is the
Customer’s responsibility to ensure its maintenance contact information is up to
date.
a) Scheduled Maintenance – All Scheduled Maintenance shall occur between the
hours of 12:00 am and 6:00 am in the local time-zone of the maintenance. No more
than five (5) Scheduled Maintenance activities shall be conducted on any one
Core Service during a Service Month, and the collective Outage time for the
Service Month shall not exceed twelve (12) hours.
b) Emergency Maintenance – No more than two (2) Emergency Maintenance activities
shall be conducted on any one Core Service during a Service Month, and the
collective Outage time shall not exceed four (4) hours.
7. Exclusions And Restrictions. Customer will not be entitled to SLA Credits for
Services where the service levels are not achieved due to any of the following:
a) Scheduled Maintenance or planned enhancements or upgrades to the PacketFabric
Network;
b) Customer exceeds the maximum capacity of a port connection, or any other rate
limitation as set forth in the applicable Order;
c) Interruptions of an IP Transit Service for which the Billing Date has not yet
commenced;
d) The acts or omissions of Customer or its employees, contractors, agents,
authorized invitees, successors or assigns, or anyone else for whom Customer is
responsible;
e) The failure or malfunction of any network elements, equipment, applications,
services, or systems not owned or controlled by PacketFabric, including without
limitation, cross-connects, local loops, or other third-party access services;
f) Maintenance periods as permitted under Section 6, any other planned
activities coordinated with Customer or requested by Customer, including
Customer-requested alterations to the applicable Core Service;
g) The unavailability of required Customer personnel, including as a result of
failure to provide PacketFabric with accurate, current contact information;
h) The configuration, failure or malfunction of non-PacketFabric equipment or
systems;
i) Interruptions caused by the negligence, error or omission of Customer or
others authorized by Customer to access, use or modify the IP Transit Service or
equipment used by Customer;
j) Lack of access to the premises where reasonably required in order to restore
the applicable IP Transit Service;
k) interruptions resulting from incorrect, incomplete or inaccurate Orders from
Customer (including without limitation Customer’s over-subscription of
circuits);
l) Customer requested special non-standard configured IP Transit Services, even
if said configurations are mutually agreed to by PacketFabric and Customer;
m) interruptions due to Customer-initiated requests to disconnect an existing IP
Transit Service and install a new IP Transit Service, including but not limited
to changes, upgrades and moves;
n) PacketFabric’s termination of an IP Transit Service for cause or Customer’s
use of an IP Transit Service in an unauthorized or unlawful manner;
o) interruptions due to power failure at Customer’s premises;
p) security breaches that are beyond PacketFabric’s reasonable control,
including, but not limited to denial of service attacks, viruses, etc.
q) Customer’s failure to release the applicable IP Transit Service for testing
or repair, and continuing to use the applicable IP Transit Service on an
impaired basis;
r) PacketFabric’s termination or suspension of the IP Transit Service for
Customer’s default or as otherwise allowed for under the T&Cs;
s) Customer’s use of the IP Transit Services in an unauthorized or unlawful
manner or in a manner in breach of the terms of this Agreement;
t) Customer’s request to keep a trouble ticket open after PacketFabric has
confirmed that the applicable IP Transit Service is Available;
u) Force majeure events as set forth in Section 10.14 of the T&Cs; and
v) Any other cause not within PacketFabric’s reasonable control.
The time period for which an IP Transit Service is not Available due to any of
the exceptions set forth in Section 6(a)-(v) shall also be excluded from any
calculations associated with Outages.
Exhibit 4
Acceptable Use Policy
1. NO ILLEGAL USE
The PacketFabric network may be used only for lawful purposes. Transmission,
distribution, or storage of any materials in violation of any applicable law,
regulation, governmental order or decree is prohibited. Customer agrees not to,
and not to allow third parties to use the Services: to violate, or encourage the
violation of, the legal rights of others; to engage in, promote or encourage
illegal activity; for any unlawful, invasive, infringing, defamatory or
fraudulent purpose; to intentionally distribute viruses, worms, Trojan horses,
corrupted files, hoaxes, or other items of a destructive or deceptive nature; to
interfere with the use of the Services, or the equipment used to provide the
Services, by customers, authorized resellers, or other authorized users; to
generate, distribute, publish or facilitate unsolicited mass email, promotions,
advertisements or other solicitations (“Spam”); to disable, interfere with or
circumvent any aspect of the Services; or to use the Services, or any interfaces
provided with the Services, to access any other PacketFabric service in a manner
that violates the terms of service of such other PacketFabric service.
2. SYSTEM AND NETWORK SECURITY
Customer may not use the Services to violate or interfere with the security or
integrity of any network, computer or communications system, software
application, or network or computing device. Customer may not make network
connections to any users, hosts, or networks unless Customer have permission to
communicate with them.
3. LIMITS ON USE OF SERVICE AND PORTAL – LICENSE RESTRICTIONS
Customer shall not, and shall not permit its Users, or any third party to:
(a) modify, adapt, or create any derivative work of any part of the
Portal, or software associated with the Services (collectively referred to as
“PacketFabric’s Network”), except to the extent permitted in this Agreement, or
attempt to recompile, reverse engineer or disassemble PacketFabric’s Network;
(b) use any automatic device or program to monitor, copy, or reproduce
PacketFabric’s Network or any portion of such; or
(c) intentionally interfere with the functionality of PacketFabric’s
Network.
4. COMPLAINTS/ VIOLATIONS OF AUP
Any complaints regarding prohibited use or other abuse of the PacketFabric
network, including violations of this AUP, should be sent to
legal@packetfabric.com. Please include all applicable information that will
assist PacketFabric in investigating the complaint.
PacketFabric reserves the right, but does not assume the obligation, to
investigate any violation of this AUP or misuse of the Services or
PacketFabric’s website or Portal. PacketFabric may investigate violations of
this AUP or misuse of the Services or PacketFabric site; or remove, disable
access to, or modify any content or resource that violates this AUP or any other
agreement PacketFabric has with Customer for use of the Services or the
PacketFabric website or Portal.
PacketFabric may report any activity that PacketFabric suspect violates any
applicable law, regulation, governmental order or decree to appropriate law
enforcement officials, regulators, or other appropriate third parties.
PacketFabric’s reporting may include disclosing appropriate customer
information. PacketFabric also may cooperate with appropriate law enforcement
agencies, regulators, or other appropriate third parties to help with the
investigation and prosecution of illegal conduct by providing network and
systems information related to alleged violations of this AUP.
5. Changes to our Acceptable Use Policy:
PacketFabric reserves the right to modify this AUP at any time. Any material
changes to this AUP will be provided to Customer in writing in accordance with
the notice provisions of this Agreement. All information submitted through the
website or Portal to PacketFabric is subject to the terms and conditions of this
AUP, as amended. It is Customer’s responsibility to request changes or deletions
to its User’s personal information.
Contact Information:
Please direct any questions or comments regarding this AUP to
legal@packetfabric.com.
***ENDS***
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