Sirius Computer Solutions, Inc. Supplemental Terms and Conditions: Internet Bandwidth

The Supplemental Terms and Conditions (the “Supplement”) detailed herein apply to purchases of internet bandwidth services delivered over the Sirius Computer Solutions, Inc. (“Sirius”) network (the “Services”). This Supplement is governed by, and incorporated into, the applicable master agreement and sales order in place with Sirius (collectively, the “Agreement”).

1. GENERAL; DEFINITIONS

1.1 Service Description. Sirius’s Internet Bandwidth service provides Internet Protocol (“IP”) connectivity to the Internet utilizing the Sirius network.

1.2 Use of Sirius IP Addresses. Any IP Addresses assigned to a client (each, a “Client”) by Sirius remain the sole possession of Sirius, and may be used only in connection with and for the duration of the Services purchased. In the event Client discontinues the use of the Services for any reason, or this Supplement terminates for any reason, Client’s right to use the IP Addresses (defined below) shall terminate within ten (10) business days.

1.3 Definitions. Unless otherwise defined herein, capitalized terms in these terms and conditions shall have the definitions attributed thereto in the Agreement.

o “Bandwidth” – the measured rate of bits per second transferred over the Sirius network from and to Client’s equipment.

o “Burst Bandwidth” – the amount of Bandwidth in excess of Client’s committed level as further defined below.

o “IP” – Internet Protocol, the basic rules and encoding specifications for sending data on the Internet.

o “IP Addresses” One or more IP address numbers.

2. SERVICE-SPECIFIC CHARGES AND SERVICE TYPES

2.1 General Connectivity. Subject to the terms and conditions contained herein, Sirius will provide to Client connectivity of its equipment to the Sirius network to enable the transfer of Internet Bandwidth on terms specified in a sales order.

2.2 Billing for Bandwidth. Billing for Bandwidth is performed on a calendar-month basis. Any Bandwidth used on a partial-month basis shall be subject to the 95th percentile calculations of the full calendar month. Billing for Bandwidth usage will follow the “95th percentile” rule: Usage samples will be collected and sorted from highest to lowest and the top 5% discarded in any given calendar month. The next highest sample (the 95th percentile number) will then be used as the basis in computing the charge for the month for incremental Bandwidth beyond the committed level. Charges for Burst Bandwidth will be billed after the end of the month.

2.3 Other Networks. Client is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the Sirius network or through other public and private networks. Sirius is not responsible or liable for performance or non-performance of such networks or their inter-connection points.

3. SERVICE LEVEL AGREEMENT
Sirius will use commercially reasonable efforts to provide a highly available and performing network.

3.1. Network availability.
A. Network availability refers to the ability of Client to traverse Sirius’s IP network to reach one or more upstream IP providers. Sirius’s IP network is defined as the switches, routers, and cabling between the Client-facing Ethernet hand-off and the Ethernet port facing the upstream provider within a single Sirius facility.
B. Network unavailability is defined as packet loss in excess of twenty percent (20%) for ten (10) consecutive minutes or two (2) five (5) minute polling intervals, whichever is longer.
C. To determine compliance, Sirius monitors all core-routing network infrastructures for device availability both internally and externally.

3.2. Network Performance.
A. Network performance refers to the latency and/or packet loss observed by Client when accessing Sirius’s network.
B. Sirius guarantees an average round trip latency of not more than fifty milliseconds (50ms) on its IP network within the Sirius facility and at least ninety-nine percent (99%) sustained packet delivery within the facility.
C. Network performance degradation is defined as latency in excess of fifty milliseconds (50ms) or packet loss in excess of one percent (1%) for two (2) consecutive hours or more. Latency is measured as round trip times between the Sirius-owned Client hand-off edge router and the Sirius-owned upstream provider hand-off router.
D. To determine compliance, measurements are taken on a continual basis on Sirius’s IP network from the local Sirius monitoring system to all Sirius core routing equipment.

3.3  Service Level Warranties & Remedy.
A. Network Unavailability. If Client is unable to transmit and receive information across Sirius’s IP network for more than twenty (20) consecutive minutes, Sirius will credit Client’s account the pro-rata Sirius connectivity charges (i.e., all bandwidth related charges) for one (1) day of Service. For each additional thirty (30) consecutive minutes the outage lasts, an additional one (1) day of pro-rata credit is due up to an aggregate maximum credit of connectivity charges for seven (7) days of Service in any one (1) calendar month.
B. Network Performance Degradation. If Sirius discovers (either from its own efforts or after being notified by Client) that Client is experiencing transmission latency in excess of thirty milliseconds (30ms) round trip time (based on Sirius’s measurements) between Client’s edge router and provider edge router (“Latency”) or packet loss in excess of one percent (1%) between Client edge router and provider edge router(“Packet Loss”), Sirius will take all reasonable actions necessary to determine the source of the Packet Loss or Latency.  If Sirius is unable to determine the source of and remedy the Packet Loss or Latency within four (4) hours, Sirius will credit Client’s account the pro-rata Sirius connectivity charges for one (1) day of Service for every two (2) hours after the time periods described above that it takes Sirius to resolve the problem, up to an aggregate maximum credit of connectivity charges of seven (7) days of Service in any one (1) month.

3.4 Client Credit Request
Client must notify Sirius within five (5) business days from the time Client becomes eligible to receive a credit under this Supplement to receive such credit. Failure to comply with this requirement will forfeit Client’s right to receive a credit. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges, and similar additional charges.

3.5 Service Credits.
The credit for a failure to meet the Uptime Commitment for Bandwidth Service shall be equal to 1/30th of the monthly recurring charge for the affected Bandwidth Service for each cumulative hour of Network unavailability that fails to meet the Uptime Commitment for Bandwidth Service during the relevant month.

3.6 Notification & Request for Credit.
A. Client may report Service interruption events or outages by contacting the Sirius support team. Any outages that may be eligible for credits must be documented via the Sirius ticketing system by either Client or Sirius personnel.
B. Client must notify Sirius within five (5) business days from the time Client becomes eligible to receive a credit under this Supplement to receive such credit. Failure to comply with this requirement will forfeit Client’s right to receive a credit. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges, and similar additional charges.

3.7 Exclusions. Client shall not receive any credits under this Supplement in connection with any failure or deficiency caused by or associated with any of the following:
A. Periodically, Sirius will upgrade, repair, or replace vital network equipment. Sirius will make a reasonable effort to notify the Client prior to performing work, generally referred to as “maintenance events” and/or “maintenance window”. During these maintenance windows, Sirius will take all reasonable steps to maintain a working network throughout; however, there is always a possibility of Service interruptions during complex maintenance events. These maintenance events, necessary for providing a consistently high level of Service, are not considered network unavailability or network performance degradation, and therefore do not qualify for service credits.
B. Any network unavailability or performance degradation that is the direct result of Client’s, or its agents’, misconfiguration, Client network saturation, or Client’s failure to properly deploy redundant connections to Sirius’s IP network shall not be subject to the provisions of this Supplement.
C. Sirius maintains sufficient connectivity to upstream IP carriers to ensure that failure of any one provider will not impact Internet access. However, since IP carriers are outside of Sirius’s control, any impact on Client’s Service resulting from any misconfiguration or partial failures within an upstream IP carrier’s network is not subject to the provisions of this Supplement.
D. Sirius shall not be liable for any failure of uptime or performance due to causes beyond its reasonable control.