Terms and Conditions - PacketFabric

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.”

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 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 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 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 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 2^nd 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.”

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 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.”

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 2^nd 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.”

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 Availability	Core Network Unavailability Duration	SLA Credit
>=99.862 <99.999%	26 seconds – 1 hour	10% of MRC
>=99.445 <99.862%	1 hours – 4 hours	20% of MRC
>=98.889 <99.445%	4 hours – 8 hours	30% of MRC
>=98.334 <98.889%	8 hours – 12 hours	40% of MRC
>=96.667 <98.334%	12 hours – 24 hours	60% of MRC
<96.667%	More than 24 hours	100% of MRC

Availability	Service Component Unavailability	Diverse Service SLA Credit	Non-Diverse SLA Credit
>=99.901 <99.999%	4 minutes – 43 minutes	15% of MRC	0% of MRC
>=99.445 <99.901%	43 minutes – 4 hours	25% of MRC	10% of MRC
>=98.889 <99.445%	4 hours – 8 hours	35% of MRC	20% of MRC
>=98.334 <98.889%	8 hours – 12 hours	50% of MRC	30% of MRC
>=96.667 <98.334%	12 hours – 24 hours	75% of MRC	50% of MRC
<96.667%	More than 24 hours	100% of MRC	100% 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 Exceeded	SLA Credit
10%	10% of MRC
20%	20% of MRC
30%	30% of MRC
50%	40% of MRC
75%	50% of MRC
100%	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 Metric	Value
North 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 Exceeded	SLA Credit
10%	10% of MRC
25%	20% of MRC
50%	30% of MRC
75%	40% of MRC
100%	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 Metric	Value
North America	< 2ms
Europe	< 2ms
Australia	< 2ms
Trans-Atlantic	< 2ms
Trans-Pacific	< 2ms

Percent of Monthly Jitter Metric Exceeded	SLA Credit
10%	10% of MRC
25%	20% of MRC
50%	30% of MRC
75%	40% of MRC
100%	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.

Region	Monthly Measurement Target
Transatlantic	95ms
Europe	45ms
Americas	150ms
Asia Pacific	250ms
Africa	350ms
Transpacific	300ms

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;

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

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.

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