29 - Internet Services Agreement

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the number of minutes that the Services are available for Customer's use by the total number of minutes of such calendar month and multiplying the result by 100. In calculating Network Availability, Service Interruptions (as defined below) resulting from the reasons or causes set forth in Section 34 of these Additional Terms and Conditions shall not be included in determining whether Vyve has metthe applicable performance standard for Network Availability. For example, if the Fiber Service experiences an outage for one (1) day due to a Force Majeure Event, and otherwise experience no other outage or Service Interruption (as defined in Section 5." 2) during the applicable month, Vyve will be deemed to have met the Network Availability performance standard of 99.99%. 3.2 Service Interruption. A "Service Interruption" means a total loss of Fiber Service. A Service Interruption is not a default under the Agreement, but may entitle Customer to credits as provided in these Additional Terms and Conditions. A Service Interruption period begins when Customer makes a Trouble Report (as defined below) to Vyve under the methods and procedures set forth in Section 4 of these Additional Terms and Conditions and ends when Vyve restores the Fiber Service to Customer. 3.3 Service Interruption Credits for Network Availability. A Credit Allowance will be given in any month during the term of the Agreement when there is a Service Interruption that qualifies for a credit allowance. The amount of the Credit Allowance shall be as follows: our (4) or more continuous A credit of 1/30 of the MRF for the month in which such ours ofa Service four (4) hour Service Interruption occurred. Not more iterruption than one (1) credit will be issued for any one (1) day iperiod regardless of the number of qualifying Service nterruptions in such 24 hour period. 3.4 Exce _ tions to Credit Allowance. Credit Allowances shall not be provided for Services Interruptions: (i) caused by Customer, its employees, agents or subcontractors; (ii) due to failure of power not caused by Vyve; (iii) during any period in which Vyve is not allowed access to the premises of Customer to access Vyve equipment; (iv) due to scheduled maintenance and repair, or during the maintenance window; (v) caused by or due to violations of the AUP; (vi) caused by fiber optic cable cuts on the Customer's property which are not the fault of Vyve; (vii) caused by a failure of the Customer's customer equipment or internal wiring or loss of other service supplied by Customer; or (viii) due to Force Majeure Events. In no event shall a Service Interruption Credit Allowance exceed one (1) month's monthly recurring fees ("MRF") in any thirty (30) day period regardless of the number or duration of Service Interruptions. a.s Major Outage. If three (3) times during the term of the Agreement, the Fiber Service to the Customer experiences a Network Availability outage that falls below the 99.99% agreement, other than as a result of the causes set forth in Section 3.4 above, Customer may terminate this Agreement without charge or payment of any termination charges otherwise provided in the Agreement; provided Customer complies with the notification process described in this Section 3.5. Within thirty (30) days of the occurrence of the third MajorOutage, Customer shall notify Vyve in writing of its election to terminate the Agreement and the Agreement shall terminate upon Vyve's receipt of such notice. If Customer fails to notify Vyve within thirty (30) days of the third Major Outage of its intent to terminate, then Customer shall be deemed to have waived its right to terminate the Agreement under this Section 3.5 until the occurrence of a subsequent Major Outage, if any. Upon termination under this Section 3.5 neither party shall have any further rights, obligations, or liabilities to the other party, except Customer obligations that accrued through the termination date, and those obligations that Page 21 of 24