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Internet Terms and Service Agreement

Thank you for your interest in the Services provided by AOP.  PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY.  This AOP Internet Terms and Service Agreement, together with the applicable Order Form(s), and any other mutually executed addendum or riders, collectively form the “Agreement.”  AOP and Customer may be referred to herein individually as “a Party” and together as “the Parties”.

  1. SERVICES 
    1. AOP will provide the Services as set forth in the Order Form pursuant to the terms and conditions set forth in this Agreement and in accordance with the Service Levels as provided in Exhibit A. The customer’s signature on the Order Form constitutes its acknowledgment and agreement to be bound by the terms herein. 
    2. AOP will work together with the Customer to set a reasonable timeline for the Services. Any delays in approvals or payment, or changes to plans or materials will alter this timeline. Under no circumstances will AOP be responsible or liable in any matter for delays and changes to the timeline arising out of or due to any unforeseen circumstances that are not in its control or actions or inactions of Customer, including but not limited to, delays due to receipt of data or content from or on behalf of Customer; delays in Customer decisions related to AOP’s efforts; delays due to changes to Customer’s systems, network environment, platforms, or operations. If such issues are discovered while performing the Services, AOP will bring these to Customer’s attention and, where possible and if requested, provide additional services to assist Customer with resolving the impact to the delivery of the Services. 
    3. If Customer requests additional services beyond what was quoted in the applicable Order Form, a separate Order Form will be provided, detailing those services and prices.  The additional services will not be rendered until and unless the additional Order Form is signed. 
    4. Each Service will be provided to the Service Location specified on the Order Form only. Any relocation of a Service shall be an amendment of such Service requiring the consent of both Parties. Customer may order additional Services or locations in North America through additional Order Forms, which will be governed by this Agreement. Customer’s account must be current in order to make changes to Services or order additional Services.  AOP may, in its sole discretion, accept or reject additional Services or Service Locations requested by Customer.

  2. TERM
    1. Each Service’s Initial Term will begin as of the Service Date, both as indicated on the applicable Order Form. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Term, each Service ordered hereunder will renew for successive terms equal in length to the Initial Term (each a “Renewal Term”) unless and until terminated as provided herein.  The Initial Term and any Renewal Term may collectively be referred to as the “Term.”  The “Service Date” is defined as the earlier of the date on which (a) AOP notifies Customer that the Service is available for Customer’s use at either the AOP defined demarcation point or last-available test point; or (b) Customer first uses the Service or the telecommunications network and network components owned, operated or controlled by AOP, including AOP’s fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by AOP to provide the Services (“AOP Network”). The Requested Service Date on the Order Form is the earliest date on which Customer is willing to accept Service. AOP does not guarantee that the Service will be installed on the Requested Service Date.

  3. SERVICE CHARGES AND BILLING
    1. In consideration for the Services performed by AOP during the Term, Customer agrees to pay AOP such compensation as described further in the applicable Order Form (“Fees”).
    2. Unless otherwise explicitly agreed to in the applicable Order Form, the payment of Installation Fees shall be due upon the Order Date
    3. Unless otherwise explicitly agreed to in the applicable Order Form, the first month’s payment of Monthly Fees shall be due upon the Order Date and future Fees shall be paid in advance. When the Service is initiated on a day other than the first day of the month or terminates on a day other than the last day of the month, the charge for that month will be determined by pro-rating the monthly payment by the actual number of days Service was received for the applicable month.
    4. Invoices.  Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service within thirty (30) days of the invoice date without counterclaim, set-off, or deduction. If Customer fails to pay AOP within five (5) business days from the date payment is due, then AOP may, without limiting and in addition to its other available remedies, assess a late payment charge at the rate of two percent (2.0%) per month or the maximum rate allowed by applicable law, whichever is the lesser. In the event Customer fails to make a payment, Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by AOP in collecting such amounts.
    5. Service charges are on the Order Form and do not include applicable taxes unless so indicated. Customer shall be solely responsible for any applicable sales, use or any other taxes where services are consumed (collectively "Taxes") payable under, or arising out of, or in connection with, this Agreement.  Customer agrees that its obligation to pay service charges and Taxes under this Agreement shall survive termination. Customers claiming tax exemption must provide AOP with a properly executed exemption form.
    6. Customer acknowledges and agrees that there shall be no refunds under this Agreement for any reason, any Service delivered or scheduled to be delivered, whatsoever, including termination of this Agreement regardless of the cause of such termination. If Customer requests early termination for any reason other than material breach by AOP, or AOP terminates for breach by Customer, Customer shall still be liable for Fees as provided in Section 4 herein.  
    7. New services, upgrades of existing Services, or relocations of an existing Service will result in additional fees and/or charges. If a prior Service location remains installed after a new Service location is installed, the Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service.
    8. AOP may change the specifications, terms and conditions, or charges for the Service for any upcoming Renewal Term by providing Customer at least sixty (60) days advance written notice.

  4. EQUIPMENT, INSTALLATION AND SERVICE USE 
    1. Customer, at its expense, will properly maintain and manage and pay for all of its equipment including its power supply.  AOP will, provide, install, operate, repair, maintain and control its equipment necessary to provide the Services to Customer in accordance with the terms of the SLA.
    2. AOP will provide Services to the interface between AOP and Customer, whether at Customer’s POP or other Customer-designated terminal equipment (“Point of Demarcation”).  Such point will be identified in the Order Form and designate the point at which AOP’s responsibility to provide Services ends and Customer’s responsibilities begin.
    3. Customer shall not adjust, remove, relocate, align, or attempt to repair, AOP’s equipment except as expressly authorized in advance in writing by AOP.  Customer will be liable for any loss or damage to AOP’s equipment arising from Customer’s negligence, intentional act, or unauthorized maintenance.
    4. AOP reserves the right to remove any of its equipment upon termination or suspension of this Agreement or at any time it deems necessary in its sole reasonable discretion.
    5. Customer’s use of AOP’s Services or Network may only be for lawful purposes and must comply with AOP’s Acceptable Use Policy (“AUP”) as posted by AOP at https://www.aopinc.com/acceptable-use-policy. AOP reserves the right to amend its AUP at any time, effective upon posting on the AOP website.   
    6. Transmission of any material in violation of any law, regulation, or the Acceptable Use Policy is strictly prohibited. Access to other networks connected to AOP’s Network must comply with such other networks’ rules. Customers whose service location (as set forth on the Order Form) is an AOP-owned or carrier-neutral data center may, with AOP’s written approval, resell AOP’s Dedicated Internet Access Service ordered in that location but not any other Service offered in such location. Customers located in any other service location may not resell their Service, in whole or in part.

  5. TERMINATION, RESTRICTION, OR SUSPENSION
    1. Prior to the Service Date, AOP may terminate the Agreement if not approved (including a credit check). AOP also may restrict, suspend or terminate the Agreement, Customer’s use of or access to any Service, or both, at any time if (a) Customer is in material breach of the Agreement (including but not limited to the AUP) and, in AOP’S sole judgment, an immediate restriction or suspension is necessary to protect the AOP Network or AOP’s ability to provide services to other customers; or (b) Customer’s account is unpaid sixty (60) days after the date of invoice, or (c) AOP facilities at Customer’s location are unavailable, (i.e., no connectivity and building access).
    2. Either Party may terminate the Agreement: (a) at the end of an Initial Term or at the end of a Renewal Term by providing the other Party with at least forty-five (45) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20th is effective June 15th); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to info@aopinc.com and receive request confirmation.
    3. If a Service is terminated by Customer prior to the Service Date, Customer shall pay AOP for all expenses in setting up Customer’s account including installation fees (if not paid) and third-party costs and charges incurred by or charged to AOP on behalf of Customer, including but not limited to local loop fees, cross-connect charges, and wiring fees (“Initial Costs”) for such Service. If Customer requests early termination after the Service Date for any reason other than material breach by AOP, or AOP terminates for breach by Customer, Customer shall still be liable for all Fees due for the entire Term.  
    4. AOP may suspend performance of some or all Services under this Agreement immediately upon written notice to Customer if Customer neglects to make any required payments when due.
    5. Notwithstanding anything to the contrary in this Agreement, AOP may immediately terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law; or (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law. AOP shall also have the right to immediately terminate the Agreement if the Customer discontinues business, or becomes insolvent, or if any action relating to the bankruptcy or insolvency of the Customer is instituted.

  6.  REPRESENTATIONS AND WARRANTIES
    1. Each Party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a Party or by which it is otherwise bound; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines.

  7. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
    1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN THE APPLICABLE SERVICE LEVEL AGREEMENT (“SLA”), IF ANY, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER AOP NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION, OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. AOP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. AOP DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMERS OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES. CUSTOMER AGREES THAT AOP HAS MADE NO AGREEMENTS, REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND THAT NO FUTURE AGREEMENT, REPRESENTATION OR WARRANTY OF AOP WITH REGARD TO SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE EFFECTIVE UNLESS EXPRESSLY STATED IN AN AMENDMENT TO THIS AGREEMENT SIGNED BY BOTH PARTIES. 
    2. NEITHER AOP NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES), OR SUPPORTING THE SERVICES SHALL BE LIABLE TO THE CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE).
    3. AOP’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) FIFTY THOUSAND DOLLARS ($50,000.00) IN TOTAL; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY FOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.  NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AOP’S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ALL CLAIMS OF DEFECTS IN THE SERVICES WILL BE, IN AOP’S SOLE DISCRETION, TO EITHER: (A) RE-PERFORM SUCH SERVICES; OR (B) FULLY OR PARTIALLY CREDIT OR REFUND THE FEES PAID BY CLIENT FOR SUCH SERVICES.
    4. CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO AOP’S CONTROL. CUSTOMER AGREES THAT AOP SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO AOP’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. AOP SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE ATTACKS). AOP IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER’S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, THE CUSTOMER AGREES THAT IT WILL NOT HOLD AOP RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE AOP NETWORK. THE CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST AOP, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.

  8. CONFIDENTIALITY
    1. Customer may from time to time be privy to AOP’s Confidential Information.  "Confidential Information" is all nonpublic information concerning AOP’s business, pricing, technology, and strategies which is conveyed orally or in tangible form and is either marked as "confidential" or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by Customer as intended to be treated as "confidential" and subject to the undertakings of this Agreement.  Customer will keep in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Customer’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party.  Customer shall use Confidential Information only as necessary for the performance of this Agreement.  Customer agrees to use at least the same care and precaution in protecting such Confidential Information as the Customer uses to protect its own Confidential Information and trade secrets, and in no event less than reasonable care.  Customer shall not remove or alter any proprietary markings (e.g., copyright and trademark notices) on the Confidential Information.
    2. The confidentiality commitments in this Agreement will not impose any obligations on Customer with respect to any portion of the received information which: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Customer, becomes generally known or available; (ii) is rightfully known to Customer at the time of receiving such information; (iii) is furnished to Customer by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iv) is independently developed by Customer or its representatives without the use of Confidential Information; or (v) is required to be disclosed by operation of law or by an instrumentality of the government, including but not limited to any court, tribunal or administrative agency; provided that, in the case of any disclosure required by court order, the Customer shall give AOP as much advance notice as is reasonably practicable under the circumstances so as to permit AOP to take commercially reasonable actions at its own expense to prevent disclosure.  
    3. The Parties agree not to provide copies of this Agreement, or otherwise disclose the terms of this Agreement, to any third party without the prior written consent of the other; provided, however, that either Party may, without obtaining the other’s consent, provide copies or make disclosures to prospective purchasers of the business of the Party; or for the purpose of obtaining third party financing; and to any regulatory or judicial body requesting such information or in connection with  any professional service utilized by either Party.  
    4. Customer acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that AOP may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At AOP’s option, Customer shall promptly either destroy all Confidential Information in tangible form in its possession, or return all such copies to AOP, and in either event provide a written certification confirming the same, promptly upon AOP’s written request. 

  9. OWNERSHIP AND LICENSE
    1. All data, information, documents, materials, supplies and equipment (“Customer Materials”), if any, provided by Customer to AOP in connection with this Agreement shall be and remain the property of Customer.  Customer retains all intellectual property rights in such information and materials. AOP is granted no right or license to use such information or materials except as follows: Customer hereby grants to AOP a royalty-free, non-exclusive, revocable, nontransferable, non-sublicensable, limited license to use the Customer Materials as appropriate solely to provide the Services. Customer represents and warrants that any and all Customer Materials provided by it to AOP, is the rightful property of Customer or Customer has full right to supply such items to AOP.  
    2. Customer agrees that, as between AOP and the Customer, AOP shall have sole and exclusive ownership of, and all right, title, and interest in and to, the AOP Materials, including the Services, and all modifications and enhancements of the Services (including ownership of all copyrights and other intellectual property rights), subject only to the rights expressly granted to the Customer under this Agreement. This Agreement does not provide the Customer with title or ownership of any AOP Material or Service, but only a limited right to use the same during the Term and solely upon the terms expressly set forth in this Agreement.  For the purpose of clarity, nothing provided by AOP under this Agreement, including the AOP Materials or Services, is to be considered a “work for hire” and AOP does not convey, transfer or assign any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights, to Customer.  “AOP Materials” means all software, applications, code, updates, and other documentation provided by, or on behalf of, AOP to the Customer including AOP manuals, programs, and all files, reports, analysis, data, and other materials and information.
    3. Subject to Customer’s payment of all Fees herein and solely during the Term of this Agreement, Customer is granted a non-exclusive, limited, non-transferable, freely revocable right to use the AOP Materials, including the Services as permitted herein. AOP may terminate or suspend access to the Services immediately, without prior notice or liability, for any reason whatsoever, including, without limitation, if Customer breaches this Agreement.  Customer acknowledges and agrees that the Services are licensed solely for Customer’s own business use and Customer may not use the Services for any other purposes, without prior written authorization from AOP. Customer agrees to not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services,  or features that enforce limitations on use of the Services. Any attempt by Customer to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. AOP reserves all rights not expressly granted under these Terms.
    4. Feedback. AOP may use any reports, comments, ratings, reviews and suggestions in any form regarding the Services that Customer provides to AOP (collectively, the “Feedback”). Customer grants AOP a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback.

  10. ADDITIONAL PROVISIONS
    1. Force Majeure.  Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party.  Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.  
    2. Independent Contractor.  Neither Party is the agent or legal representative of the other Party, and this Agreement does not create a partnership, joint venture, or fiduciary relationship between AOP and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever.  This Agreement confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, the Customer’s subscribers or end-users.
    3. Publicity. Other than as explicitly stated herein, neither Party shall use the other Party’s names, symbols, trademarks, or other marks without the other Party’s prior written consent.  AOP may publicly refer to Customer as a Customer of AOP, including on AOP’s website and in sales presentations and as provided below, and may use Customer’s Marks for such purposes.  
    4. Governing Law and Jurisdiction.   This Agreement will be governed by and construed in accordance with the laws of the State of Louisiana.  For any dispute, the Parties agree to first attempt to resolve the dispute informally. In the event that the Parties are unable to resolve a dispute after sixty (60) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief which may be brought in federal or state courts situated in Calcasieu Parish, Louisiana) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Calcasieu Parish, Louisiana, unless the Parties agree otherwise. The arbitrator, witness, party representative, counsel, expert or staff may participate by video conference where such participant (when participating) can be heard and seen (i.e., Zoom). Each Party will be responsible for paying its applicable JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Nothing in this Section shall be deemed as preventing a Party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its confidential information, intellectual property rights or other proprietary rights.
    5. Expenses and Attorneys’ Fees.  In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
    6. Notice.  Any notices or communications under this Agreement must be sent in writing by email, (written and/or physical material is not accepted) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to AOP must be sent in accordance with Section 5 above. In the event of an emergency, AOP may only be able to provide verbal notice first; such verbal notice will be followed by email notice. The customer is responsible for the accuracy of its information on the Order Form, including points of contact. Each Party may change its email address for receipt of notice by giving notice of such change to the other Party.  For contractual purposes, AOP and Customer consent to receive communications from each other in an electronic form, and Customer agrees that all terms and conditions, agreements, notices, disclosures, and other communications that AOP provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
    7. Customer may not assign this Agreement without AOP’s prior written consent, which consent shall not unreasonably be withheld. Any such assignment without AOP’s prior written consent shall be void. This Agreement shall be binding upon and shall benefit the Parties and their respective successors and permitted assigns.
    8. Survival: All provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination. 
    9. Entire Agreement. This Agreement supersedes any and all agreements, either oral or written, between the Parties hereto with respect to the rendering of services in any manner.  Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding.  Any modification of this Agreement will be effective only if it is in writing signed by the Parties hereto.
    10. No Third-party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the Parties, their licensors, and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever. 
    11. Waiver.  The failure of either Party hereto to insist in any one or more instances upon strict compliance with the performance of this Agreement or to take advantage of any respective rights hereunder shall not be construed to be a waiver of such provisions or the relinquishments of such rights in other instances, but the same shall continue and remain in full force and effect.
    12. Severability. In the event that any provisions hereof shall be held to be invalid or unenforceable for any reason whatsoever, it is agreed that such invalidity or unenforceability shall not affect any other provision of this Agreement and the remaining provisions shall remain in full force and effect.
    13. Interpretation. Section headings are for reference only, and shall not be construed as substantive parts of this Agreement. Each capitalized term used in this Agreement (including any schedule or exhibit of this Agreement) shall have the meaning attributed to it in any part of this Agreement (including any such schedules or exhibits).
    14. Advice of Counsel & Authority. Each Party acknowledges: (a) having fully read this Agreement in its entirety; (b) having had full opportunity to study and review this Agreement; (c) having been advised that all Parties have the right to consult and should consult independent counsel respecting their rights and duties under this Agreement; and (d) having had access to all such information as has been requested. The individuals, corporations or entities entering into this Agreement represent and warrant that they are competent and capable of entering into a binding contract, and that they are authorized to enter into this Agreement on behalf of the Parties.
    15. This Agreement may be executed in one or more counterparts all of which taken together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the Parties have agreed to the terms of this Agreement as of the Effective Date. 

 

ADVANCED OFFICE PRODUCTS, INC.           CUSTOMER:_________________________ 

 

By:  _______________________________ By:  _______________________________

Title: ______________________________ Title: ______________________________

Date: ______________________________ Date: ______________________________

 

 

EXHIBIT A

 

SERVICE LEVELS

  1. The Services will be available on a 7 (day) x 24 (hour) basis except for outages for maintenance and upgrades within the Maintenance Window defined below.  If any outage is outside of the Maintenance Window, then AOP will provide reasonable prior written notice (email acceptable) to Client of such scheduled outage as detailed below. 

  2. AOP will, at AOP’s expense, upgrade or improve capacity and performance levels within its environments as AOP, through reasonable commercial judgment, determines improvements are warranted and necessary for availability and performance attainment. The Services will be available for access and use by Client, including all features and functionality thereof, without Severity Levels 1, 2, and 3 issues as detailed in the Technical Support Table below (“Issues”), 99.5% of the time, measured on a monthly basis (“Uptime”).  Availability will be calculated for the measurement period by dividing (a) the Baseline Uptime less Unscheduled Downtime by (b) the Baseline Uptime for the same period. 
    1. “Baseline Uptime” means the total number of minutes during the measurement period during which the Services, including all features and functionality thereof, is available for access and use by Client without Issues.  Baseline Uptime excludes Excused Downtime.
    2. “Scheduled Downtime” means the total time during the measurement period that the Services, including any features or functionality thereof, is not available for access and use by Client during Maintenance Window.
    3. “Unscheduled Downtime” means the total number of minutes during the measurement period during which the Services or any feature or function thereof is not available for access or use by Client (other than Excused Downtime) or contains Issues, measured from the time Client first reports the outage to AOP.
    4. “Excused Downtime” means the total time during which the Services or any feature or function thereof is not available for access or use, or contains Issues, by Client during Scheduled Downtime or due to events outside of AOP’s control, including: (i) Client side hardware or network issues; (ii) telecommunications outages; and (iii) other force majeure events.

  3. Scheduled Downtime (Maintenance Window)
    1. AOP will use reasonable efforts to perform all scheduled maintenance and backups during off-peak periods.  AOP will provide Client with at least 72 hours’ notice of maintenance if any service disruption is anticipated.  Notification will be provided by email to the main point of contact on the Order Form. Unless otherwise agreed to by the parties, AOP will schedule maintenance during the maintenance window between 10:00 pm to 2:00 am Central Time on Saturday (the “Maintenance Window”); provided, however, that AOP will limit downtime resulting from such Scheduled Downtime to twice per month for no more than 30 minutes per downtime.  AOP will not be required, unless otherwise agreed to by the parties, to provide any other notice or coordination not specified herein or in the Agreement with Client with respect to any maintenance performed and outages during any Maintenance Window.

  4. Technical Support 
    1. Customer may request Support from AOP by submitting an online ticket at support@AOPinc.com. AOP’s standard technical support hours are Monday through Friday, 9 am – 5 pm CST.  AOP will respond to requests for Support in accordance with the following time frames based upon the severity of the technical problem reported to AOP.  AOP may in its reasonable discretion upgrade or downgrade the severity level upon investigating the request for Support.

Severity Level

Description of Issues

Initial Response Time

Status Updates

Escalation of Issue If not Resolved Within:

3

Minor/low impact issues that may have a reduction in solution capability but no impact to customers or operational processes.  Includes anything that would not rise to the level of a Severity 1 or Severity 2 issue. 

Five (5) business days

As commercially reasonable until information provided. 

10 business days

2

Significant impact issues that have operational impact but no customer facing impacts.  

Two (2) business days

Every twelve hours until Services restoration is provided.

5 business days

1

Critical/High impact issues that have a critical impact on services and revenue and require immediate attention.  

Within four (4) business hours.

Every hour until Services restoration is provided 


8 hours

 

AOP will make commercially reasonable efforts to respond to and remedy problems per the Service Levels above.  If AOP does not resolve issues that specifically fall into the Service Level criteria above within the documented timeframes as provided above, Customer will escalate the matter in writing to support@AOPinc.com and will provide the applicable online ticket number.  If after such escalation, the problems are addressed but remain outstanding or other issues arise, the Parties will continue to work together in good faith to resolve and address the issues as expeditiously as possible.

 

PRODUCT RIDER

This product rider (Rider) adds to the Agreement entered into between Customer and AOP for the Services specified therein. Unless otherwise defined herein, capitalized or defined terms in the Agreement have the same meaning in this Rider. In the event of a conflict between forms, the following will be the order of priority: First, the Order Form; Second, any Addendum entered into by the Parties; Third, the Terms; Fourth, this Rider; and Fifth, the SLA.

 

  1. Service and Options
    Within the scope of the Dedicated Internet Access Service, AOP transmits IP-packets between the AOP Network and associated networks of its Customers as well as to and from the global Internet using AOP’s settlement-free peering agreements with other networks. Subject to their availability, Customer may select one or more options associated with the Service such as listed in the Order Form, in which case Customer agrees to pay the related fees such as indicated in the Order Form:
    • IP Address Allocation: AOP will allocate an IPv4/29 and IPv6/112 free of charge to Dedicated Internet Access customers as part of each port order. If Customer desires a larger IP address space allocation, Customer shall submit an application to AOP for the larger allocation, using AOP’s “IP Questionnaire” form. If AOP approves the application, Customer will be required to place an order for the larger IP allocation. Each larger allocation for IPv4 address space will be subject to an additional Monthly Fee. Larger allocations for IPv6 address space will be free of charge. AOP makes no guarantees that any subsequent allocations will be contiguous to any of Customer’s existing allocations. IP address space allocations are subject to the AUP and will be terminated and reclaimed when Customer’s Dedicated Internet Access Services with AOP are terminated. 
    • BGP routing: Customer may connect to AOP’s network using the BGP protocol (Border Gateway Protocol). Customer will be required to place an order and a BGP session will be established with Customer’s own assigned ASN (the Primary ASN). If Customer wishes to connect with multiple BGP sessions over a single port (or LAG bundle) with the Primary ASN and ASNs from third parties represented by Customer (the Secondary ASNs), then Customer will be required to provide AOP with a Letter of Authorization (“LOA”) issued by the third parties having registered the Secondary ASNs in order to activate such Service, and all interactions, being during provisioning or operations, related to BGP-sessions set up between AOP’s network and Secondary ASNs will be handled exclusively between AOP and Customer. The fact that a BGP session is being set up between AOP and other parties represented by Customer does not constitute a contractual relationship between AOP and the other parties, this interaction is ruled by the contractual relationship established between AOP and the Customer. AOP will charge an additional Monthly Fee for each ASN connected, including the Primary ASN.
    • Static routing / VLAN: Customers connecting to AOP’s network with static routing (i.e., non-BGP) may require a VLAN (Virtual Local Area Network) structured port. Customer must place an order to have a VLAN configured on Customer’s port, in order to support static routing of Customer’s own assigned IP address space (the Primary IPs). If Customer wishes to connect with Primary IPs and IP addresses from third parties represented by Customer (the Secondary IPs), over one or more VLANs on a single port, then Customer will be required to provide AOP with a Letter of Authorization (“LOA”) issued by the third parties having registered the Secondary IPs in order to activate such Service, and all interactions, being during provisioning or operations, related to static routing (and, as the case may be, VLANs) set up between AOP’s network and Secondary IPs will be handled exclusively between AOP and Customer. The fact that static routing is (and, as the case may be, VLANs are) being set up between AOP and other parties represented by Customer does not constitute a contractual relationship between AOP and the other parties, this interaction is ruled by the contractual relationship established between AOP and the Customer. Each VLAN will receive the same IP address space allocation as a port order at the same location. AOP will charge an additional Monthly Fee for each VLAN connected.
    • Link Aggregation (LAG): In certain Service Locations, Customer may elect to aggregate multiple 10 Gigabit Ethernet Services in such Service Location into a Link Aggregation bundle (a “LAG-bundle”). Under such option, AOP will configure the LAG-bundle in such a way that, in case of an outage of some (but not all) Services involved in the LAG-bundle, unaffected Services in such LAG-bundle will continue to pass traffic. Link Aggregation is the technical combination of ports and is independent from billing options: AOP will bill burstable Services involved in a LAG-bundle independently from each other, unless Customer elects to combine them using the “Summed Burst Billing” or “Aggregate Burst Billing” options described in section 2 below.
    • Equipment: AOP may, at its sole discretion and if available, provide equipment for certain Services. The fees for such equipment as agreed in the Order Form will be added to Customer’s invoice. AOP does not guarantee and is not responsible for any specific type of equipment, or any equipment at all, to be made available to Customer, and such equipment will belong to Customer upon receipt. Customer will provide its own technical support to install, maintain, and integrate equipment. AOP will not provide onsite technical support. Customer will be responsible for applicable replacement costs if the equipment is subject to any damage, unauthorized alteration/modification/repair, abnormal use, misuse, neglect, abuse, accident, improper installation, or other acts caused by Customer, its employees, contractors, or any other person. Such action or inaction may void any manufacturer warranties. Customer further agrees to indemnify and hold harmless AOP for any third party claim based on Customer’s unauthorized alteration or modification of the equipment. AOP is not responsible for Service disruptions caused by any request by Customer to relocate equipment.
    • Expedite Delivery: AOP’s installation guarantee is strictly limited to the installation guarantee stated in the SLA. However, Customer may request in the Order Form an expedited delivery for his Service. AOP will use commercially reasonable efforts to accommodate Customer’s request; provided, however, that AOP does not guarantee that any such request will be fulfilled (and any such guarantees given either orally or in writing are hereby disclaimed) nor does AOP guarantee that the Service will be delivered on a specific date, such as the Requested Service Date indicated on the Order Form.

 

  1. Burstable Service
    If Customer is purchasing AOP’s burstable Service, Customer will have a minimum bandwidth commitment assigned for a given port (the Bandwidth Commitment or Committed Data Rate, “CDR”). The Bandwidth Commitment is agreed upon in the Order Form and is the minimum amount of bandwidth that will be charged to Customer each month at the base Service price, even if not fully used by Customer during a given month. Customer may burst up to the maximum bandwidth that can be carried on a given port, e.g. 1,000 Mbps for a Gig-Ethernet port, subject to availability of bandwidth within the AOP network. 

If Customer exceeds the Bandwidth Commitment on any burstable port in any given calendar month, Customer agrees to pay the additional per Mbps charge for excess bandwidth usage over the Bandwidth Commitment as indicated in the Order Form. Such excess bandwidth usage is calculated by AOP as the difference between total bandwidth usage and Bandwidth Commitment, where total bandwidth usage is determined by collecting bandwidth usage samples every 5 minutes throughout the month for each port (a sample is based upon the average usage across the 5-minute segment) and determining the appropriate percentile (90th or 95th) of usage as indicated in the Order Form. Only one sample is captured for each 5-minute period, even though two samples are collected - one for inbound utilization and one for outbound utilization. The higher of the two samples is retained. For partial months, the total number of samples for the calendar month is used; for samples where there is no usage, 0 is the recognized value. For example, in a 30-day billing period, 8,640 samples are collected (12 samples/hour x 24 hours/day x 30 days) and listed from highest to lowest. In case of 95th percentile billing, the highest 5%or 432 samples are discarded (representing the top 5% of usage levels). The highest remaining sample (sample 433 in this example) is used to determine total bandwidth usage. For 90th percentile billing, the highest 10% or 864 samples are discarded (representing the top 10% of usage levels). The highest remaining sample (sample 865 in this example) is used to determine total bandwidth usage. Under the “Summed Burst Billing” option available in conjunction with 90th percentile burst billing, AOP calculates excess usage as the difference between the sum of total bandwidth usage and the sum of Bandwidth Commitment across all summed ports.

For example, if Summed Burst Billing is applied over three ports with a Bandwidth Commitment of 200 Mbps on each (i.e., a total Bandwidth Commitment of 600 Mbps) and the individual 90th percentile total bandwidth usage amounts were 70 Mbps, 150 Mbps and 500 Mbps, the excess bandwidth usage would be 120 Mbps (70 + 150 + 500 - 600).

Under the “Aggregate Burst Billing” option available in conjunction with 95th percentile burst billing, excess bandwidth usage is calculated by AOP as the difference between total aggregated bandwidth usage and the summed Bandwidth Commitment across all aggregated ports, where total aggregated bandwidth usage is determined by adding usage samples every 5 minutes across all aggregated ports. In the event the aggregated ports are located in more than one time zone, usage samples taken at the same local time will be added together, e.g., usage samples taken at 9 p.m. local time in London will be added to usage samples taken at 9 p.m. local time in New York City. For example, if there are three aggregated ports, every 5 minutes three inbound samples and three outbound samples are collected, added up to one bandwidth usage value per direction, and the higher of the two values is retained. In a 30-day billing period, the final 8,640 retained bandwidth usage values reflect the aggregated usage across all ports. These values are listed from highest to lowest. The highest 5% or 432 values are discarded (representing the top 5% of usage levels). The highest remaining value (value 433 in this example) is used to determine total aggregated bandwidth usage. Under both “Summed Burst Billing” and “Aggregate Burst Billing” options, a Master Service is defined in the Order Form, and all other Services involved in a Summed or Aggregate calculation are listed. Excess bandwidth usage (burst usage) calculated across the listed ports will be billed on the Master Service account. The relevant data (additional per Mbps charge for excess bandwidth usage and Billing Currency) pertaining to the Master Service will be used for calculating excess bandwidth usage fees across Master Service and all other involved Services. For example, if a customer orders ports in the UK, US, and Canada and defines the US port as the Master, all excess bandwidth usage will be billed on the US invoice in US dollars, at the burst fee indicated on the US port order form. These billing options are independent from the Link Aggregation (LAG) option: AOP will not combine Services involved in “Summed Burst Billing” or “Aggregate Burst Billing” into a LAG-bundle, unless Customer elects to combine them using the Link Aggregation (LAG) option described in section 1 above. Furthermore, if Customer wishes that AOP bills Services part of a LAG bundle according to the “Summed Burst Billing” or “Aggregate Burst Billing” option, then Customer must elect these options for such Services, in addition to the election of the LAG Option.

  1. Customer’s Duties to Cooperate
    Customer or its representative must cooperate with AOP in the installation process, which includes accurate completion of an Order Form containing detailed demarcation information and other onsite contact listings, and of the necessary technical questionnaires (IP Questionnaire, BGP Questionnaire, etc.) as provided by AOP. Customer or its representative must be physically present at the time of installation. During installation and at all other times, the Customer will allow access and if necessary, provide escort, for AOP’s or its representatives’ necessary personnel to perform the installation and maintenance of the Service, to the designated building’s phone closet(s) or telecommunications room or to the Customer’s premises for the purposes of survey, installation, operations and maintenance of the Service, after prior arrangement between the parties. Customer’s failure to cooperate shall release AOP from its obligations pertaining to the Installation Guarantee included in the SLA but shall not suspend the Service Date or billing start date.

In the event of technical problems relating to the Service, the Customer will ensure that AOP’s or its representatives’ service engineers have unrestricted access to the designated building’s phone closet(s) or telecommunications room or to the customer premises equipment. Customer’s failure to provide access shall release AOP from its obligations pertaining to the Network Availability part of the SLA.

 

  1. Demarcation Point
    Within an AOP data center: If Service delivery takes place within an AOP data center, AOP will deliver the Service at a demarcation point situated on the AOP equipment. AOP will provide, maintain and operate the necessary wiring (“Cross-Connect”) for Customer to connect to AOP’s service at the indicated demarcation point. AOP will provide such Cross-Connect for the Cabling fee set forth on the Order Form.

Within a third-party data center: If Service delivery takes place within a third party data center (i.e. that is not owned and/or operated by AOP), AOP will deliver the Service at a demarcation point situated on the AOP equipment. Unless otherwise agreed, Customer will at its own cost provide, maintain and operate the necessary wiring (“Cross-Connect”) to connect to AOP’s service at the indicated demarcation point. If Customer and AOP agree that AOP shall provide such Cross-Connect, then AOP will provide such Cross-Connect against Cabling fees such as indicated on the Order Form and the Service demarcation point will remain on the AOP equipment. AOP may increase Cross-Connect fees at any time to the extent AOP’s third party costs directly associated with providing the service (including, but not limited to, third party data center rates) are increased by the third party.

Within an On-Net corporate building: If Service delivery takes place within an On-Net corporate building, AOP will deliver the Service at a demarcation point situated on the AOP equipment within the Customer’s suite. AOP will provide, maintain and operate the necessary wiring (“Riser”) between the building entry and the indicated demarcation point.

At an Off-Net Customer Location: Off-Net Services are being delivered to the Customer Location indicated in the Order Form through a third-party local loop to be provisioned by AOP on behalf of Customer. As such, the Customer and AOP agree that the charges set forth in the Order Form for such Service assumes that such Service will be terminated at a pre-established demarcation point or minimum point of entry (MPOE) in the building housing the Customer Location, as determined by the local access provider. AOP may charge Customer additional nonrecurring charges not otherwise set forth herein for such Service where the Customer or local access provider determines that it is necessary to extend the demarcation point or MPOE through the provision of additional infrastructure, cabling, electronics or other materials necessary to reach the Customer Location. It shall be the Customer’s responsibility to allow access to the facility for the local access provider, as well as to facilitate or coordinate with the property owner at the Customer Location, all additional space and electricity determined by the local access provider to be necessary to provide the Service. AOP will notify the Customer of any additional non-recurring charges, if any, as soon as practicable after AOP is notified by the local access provider of the amount of such charges. From time to time, AOP may provide, and Customer may accept, budgetary estimates for the extension of the demarcation point to the Customer Location along with the initial Order Form. These estimated costs may be based on certain known costs or typical installations that do not require extraordinary efforts by the provider to extend the service. In the event actual costs exceed the budgetary estimate, AOP will notify the Customer as outlined above.

In addition, the charges and the Term set forth in the Order Form for the Service assumes that such Service can be provisioned by AOP through the local access provider selected by AOP (and/or Customer) for the stated Term. In the event AOP is unable to provision such Service through the selected local access provider or the selected local access provider requires a higher cost or longer Service Term than that set forth in the Order Form, AOP reserves the right, regardless of whether AOP has accepted the Order Form, to suspend provisioning of the Service hereunder and notify Customer in writing of any additional non-recurring charges, monthly recurring charges and/or Term that may apply, or to cancel the Service set forth on the Order Form. Upon receipt of such notice, Customer will have five (5) business days to accept or reject such changes. If Customer does not respond to AOP within the five (5) business day period, such changes will be deemed rejected by Customer. In the event Customer rejects the changes (whether affirmatively or through the expiration of the five (5) business day period) or if AOP elects to cancel the Service ordered herein, the affected Service will be cancelled without cancellation or termination liability of either party.

AOP may also increase Off-Net Service fees at any time to the extent AOP’s third party costs directly associated with providing such Off-Net Services (including, but not limited to, loop provider or third party data center rates) are increased by the third party.

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