Inyo Networks, Inc., with an office at 10630 Town Center Drive, Rancho Cucamonga, CA 91730 ("Inyo Networks"), has adopted the following terms and conditions (“Terms”) for providing the framework to govern customer’s, as named on the Service Agreement(s) (“Customer”), use, purchase and ordering of certain communication services from Inyo Networks. Inyo Networks and Customer may each be referred to herein as a “Party” and collectively as the “Parties.”

These Terms, along with the Service Agreement(s) (defined below), Acceptable Use Policy, any exhibits, attachments, and any filed tariff(s), comprise the entire agreement between the Parties (“Agreement”). 

Please read these Terms carefully, prior to signing any Service Agreement(s), as Customer’s access and use of the Services is conditioned upon its acceptance of these Terms which attached to and become a part of the Service Agreement(s) executed between Inyo Networks and Customer.

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1.      ORDERING OF SERVICE

1.1.    Service(s): “Services” as used in these Terms shall mean the telecommunications and information services and applicable ancillary services described in any of the following exhibits, which are attached to and fully incorporated into these Terms (collectively referred to as “Exhibits” or individually as “Exhibit”):

Exhibit A                                   Optical Ethernet Transport Services

Exhibit B                                   Internet Access Services

Exhibit C                                   Optical Carrier Private Line Services

Exhibit D                                   Managed Wavelength Services

Exhibit E                                   Point to Point 

1.2.    Service Agreement: Customer may, from time to time, request Inyo Networks provide it with Services as further delineated, and agreed to, in an order (“Service Agreement”). Customer is solely responsible for the accuracy of the information provided in the Service Agreement(s). Inyo Networks agrees to provide to Customer, and Customer agrees to procure from Inyo Networks, the Service(s) at the location(s), and for the number of months (“Service Term”), set forth in the applicable Service Agreement. Each Service Agreement shall clearly set forth the Service Term, type of Service(s), location(s), Demarcation Point(s) (defined below), monthly recurring charge (“MRC”), non-recurring charge (“NRC”), as well as any additional specific terms for the Service(s).

1.3.    Service Term: The Services ordered in a Service Agreement may be installed and delivered to Customer on different dates. The Service Term will commence once all Services ordered, under such Service Agreement, are delivered to the Demarcation Point (defined below).  Upon expiration of the Service Term, the applicable Service Agreement shall renew upon the same terms and conditions as set forth in the original Service Agreement, on an annual basis, not to exceed a total of two (2) renewals (each a “Renewal Service Term”), unless and until either Party provides the other with sixty (60) days’ prior written notice of its desire to terminate the applicable Service. Inyo Networks shall use commercially reasonable efforts to deliver the Service(s) to Customer on the date set forth in the Service Agreement(s); however, Inyo Networks does not guarantee that Service will be installed and provisioned on such date. Customer is responsible for providing all reasonable information, authorizations, and access required by Inyo Networks for the purpose of performing installation, maintenance and repair of the Service(s). This includes, but is not limited to, obtaining any necessary license(s) granting Inyo Networks access to the Customer’s Premise (defined below) for the duration of the Service Term and applicable Renewal Service Term.

1.4.    Firm Order Commitment:  Inyo Networks shall issue a firm order commitment (“FOC”) notification setting forth the date upon which it will deliver the Services to Customer.  Customer shall be entitled to cancel the Service Agreement without any liability, penalty, or further obligation at any time prior to the FOC notification.

1.5.    Credit Approval and Deposits: Customer will provide Inyo Networks with credit information as reasonably requested. Inyo Networks’ acceptance of any Service Agreement is subject to Inyo Networks’ reasonable credit approval. Inyo Networks may require Customer to make a non-interest bearing deposit (which will not exceed Customer's MRC for three (3) months' of Service) as a condition to Inyo Networks' acceptance of any Service Agreement, or as a condition to Inyo Networks’ continuation of Service.  The deposit will be held by Inyo Networks as security for payment of Customer's charges.  When Service to Customer is terminated, the amount of the deposit will be credited to Customer's account and any remaining credit balance will be refunded.

2.      GENERAL COMMERCIAL TERMS

2.1.    Commencement of Billing: Upon installation and testing of the ordered Service, Inyo Networks will deliver to Customer a notice that such Service is installed, meets the agreed upon specifications, and is ready for Customer’s acceptance testing (“Connection Notice”). Upon receipt of the Connection Notice, Customer shall have a period of forty-eight, (48) hours to provide Inyo Networks with written acceptance or rejection of the Service. If Customer does not deliver written notice of rejection to Inyo Networks identifying, with specificity, the basis for the rejection, with reasonable supporting documentation, within such 48-hour period, the Service shall be deemed accepted (“Acceptance Date”). The Acceptance Date occurs per Service, per location, and billing shall commence for such Service on its respective Acceptance Date. The Acceptance Date is not contingent upon Customer’s need to procure equipment, support or other services from a different provider. If a Service consists of more than one circuit, then Inyo Networks will issue a separate Connection Notice for each circuit.  The terms and conditions outlined in this Section shall apply individually to each individual circuit when the Service Agreement consists of more than one circuit.  Billing for moves, adds and changes (“MAC”) for existing Services will commence on the date Inyo Networks issues a Connection Notice to the Customer for the MAC.

2.2.    Payment of Invoices: Invoices are sent monthly, in advance for Services to be provided during the upcoming month.  All invoices are due for payment within thirty (30) days of the invoice date.  Billing for partial months is prorated based on a calendar month. Past due amounts bear interest at a rate of 1.5% per month, or the highest rate allowed by law, whichever is less, and continue to accrue until paid in full. Inyo Networks shall be entitled to recover all costs of collection of past due amounts, including without limitation, reasonable attorneys’ fees.

2.3.    Billing Disputes: Customer must notify Inyo Networks in writing of any disputed charge within thirty (30) days from the date of the invoice. Any charge not disputed within said 30-day period will be deemed correct and Customer will be deemed to have waived its right to dispute the same.  Inyo Networks will review any disputed charge and, as appropriate, credit Customer’s account for any charge erroneously billed to Customer.

2.4.    Taxes and Fees: Taxes, surcharges, fees, universal service fund charges associated with the Service, and other payments contractual or otherwise, for the use of public streets or rights of way, whether designated as franchise fees or otherwise are not included in the MRC stated in the Service Agreement and will be billed and paid by Customer as separate line items to the extent imposed on a pass-through basis without mark-up of any kind whatsoever.  Customer shall not be liable for any taxes, fees, or other charges based upon Inyo Networks’ income. Inyo Networks will not invoice Customer for federal excise taxes or (if applicable) state sales taxes subject to Customer providing Inyo Networks with a valid Sales Tax Exemption.  Should the Customer's Sales Tax Exemption Certificate be declined by any taxing authority Customer will be obligated to remit to Inyo Networks the sales tax associated with the Customer's impacted Service. 

2.5.    Termination Charges: In the event that, prior to the end of the Service Term, Customer terminates Service or in the event that the delivery of Service is terminated due to a failure of Customer to comply with these Terms, Customer shall pay a termination charge equal to: (a) one hundred percent (100%) of the MRC that would have been incurred for the Service for the months remaining on the Service Term up to the first 36 months of the Service Term; plus (b) fifty percent 50% of the MRC for months 37 through 60; plus (c) twenty-five percent (25%) of the MRC for 61st month through the remainder of the Service Term; plus (d) one hundred percent (100%) of any termination charge imposed on Inyo Networks by a third party due to Customer’s early termination of the Service (“Early Termination Charge”).

3.      CUSTOMER OBLIGATIONS

3.1.    Demarcation Point(s): Every Service Agreement will specify the location where Inyo Networks’ facilities interconnect with Customer’s or any third party’s facilities (“Demarcation Point(s)”). Customer is responsible for securing an agreement(s) with the owner of the building or property where the Customer’s Demarcation Point(s) resides (“Customer’s Premises”), and, as necessary, all easements, rights-of-way, or licenses necessary to permit Inyo Networks to construct a fiber connection from Inyo Networks’ presence to inside the Customer’s Premises for the duration of the Service Term. Customer is responsible for connectivity to the Demarcation Point(s) and any facilities, fiber, equipment, or rights located on Customer’s side of the Demarcation Point(s) that will, at all times, be installed, maintained, repaired, operated, controlled, and remain the sole and exclusive property of Customer (“Customer’s Equipment”). Customer must procure and maintain, at its sole cost and expense, Customer’s Equipment to be technically compatible with the Service(s) delivered and Inyo Networks’ facilities. Customer will provide a safe place to work and comply with all applicable laws regarding the working conditions at the Customer’s Premises.

3.2.    Security: Customer shall be solely responsible for all the security and confidentiality of information it transmits using a Service. Inyo Networks exercises no control over, and accepts no responsibility for, the content of the information passing through its network, or Customer’s Equipment, and use of any such Service is at Customer's own risk. Customer is responsible for payment of any charges incurred due to fraud, abuse, or misuse of the Services, whether known or unknown, to Customer.  It is the Customer’s obligation to take all measures to ensure against such occurrences. Customer shall be solely responsible for its improper use of the Service and/or Customer’s end-users’ or third parties’ improper use of the Service, resale, or sharing of the Service in violation of any applicable law or in violation of any provision of the Agreement. Customer does not have the right to maintain, repair, relocate, splice or touch Inyo Networks’ equipment or facilities, unless expressly agreed to in writing, and Customer will be solely liable for any loss or damage suffered by Inyo Networks due to Customer’s actions. Except as delineated in a Service Agreement, Inyo Networks is not responsible for and will not make any changes or submit updates to 911/E-911 databases for any Services; Customer will be responsible for providing all 911/E-911 functionality as required by applicable law.

3.3.    Inyo Networks’ Supplied Equipment: It is Customer’s obligation, and at its sole expense, to provide for space, racks (needs to be bolted down), electricity, back-up power, security, and heating and air conditioning for any equipment Inyo Networks installs at the Customer’s Demarcation Point (“Inyo Networks’ Supplied Equipment”).  Customer will be responsible for providing and maintaining, at its own expense, the proper environment for all Inyo Networks’ Supplied Equipment. In the event Customer fails to do so, Customer shall reimburse Inyo Networks for the actual cost of repairing or replacing any of Inyo Networks’ Supplied Equipment damaged or destroyed as a result of Customer's failure. Except as otherwise agreed, title to all of Inyo Networks’ Supplied Equipment shall remain with Inyo Networks.  Inyo Networks will provide and maintain Inyo Networks’ Supplied Equipment in good working order.  Customer shall not, and shall not permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any of Inyo Networks’ Supplied Equipment without the prior written consent of Inyo Networks. Inyo Networks’ Supplied Equipment shall not be used for any purpose other than that for which Inyo Networks provides. Customer shall not take any action that causes the imposition of any lien or encumbrance on Inyo Networks’ Supplied Equipment. In no event will Inyo Networks be liable to Customer or any other person for interruption of Service or for any other loss, cost or damage caused or related to improper use or maintenance of Inyo Networks’ Supplied Equipment by Customer or third parties provided access to the Inyo Networks’ Supplied Equipment by Customer in violation of these Terms. Customer shall reimburse Inyo Networks for any damages incurred as a result thereof. Customer agrees, which agreement shall survive the expiration, termination or cancellation of these Terms or of any Service Agreement, to allow Inyo Networks to remove Inyo Networks’ Supplied Equipment from the Customer’s Premises after termination, expiration or cancellation of the Service Term; or during the Service Term, for repair, replacement or otherwise as Inyo Networks may determine is necessary or desirable, but Inyo Networks will use commercially reasonable efforts to minimize disruptions to the Service caused thereby. 

3.4.    Access to Customer’s Premises: As a condition to Inyo Networks’ obligation to provide and maintain the Service hereunder, Customer shall provide Inyo Networks access to the Customer’s Premises for the installation, inspection and scheduled or emergency maintenance of Inyo Networks’ Supplied Equipment and/or Demarcation Point. If Inyo Networks requires access to Customer’s Premises for maintenance, which is not an emergency event, Inyo Networks will provide Customer with two (2) business days’ prior notice. Customer will provide a safe place to work and comply with all laws and regulations regarding the working conditions at the Customer’s Premises. To facilitate Inyo Networks access for regular and emergency service, Customer shall provide Inyo Networks the contact name and telephone number(s) where such contact can be reached on a 24 X 7 X 365 basis.  It is the obligation of the Customer to keep this contact information up to date.  Inyo Networks’ Supplied Equipment may be used to service other Inyo Networks’ customers.

3.5.    Customer Supplied Equipment: Inyo Networks may install certain Customer-provided communications equipment upon installation of Service, but Inyo Networks shall not be responsible for the operation or maintenance of any Customer-provided communication equipment. Inyo Networks undertakes no obligations and accepts no liability for the configuration, management, performance or any other issue relating to Customer's routers or other Customer-provided equipment used for access to or the exchange of traffic in connection with the Service.

4.      Inyo Networks’ Obligations: Inyo Networks will provide a design of the overall network for the Services being delivered, but will work in good faith with Customer to determine the type of interface for the Service(s), Demarcation Point(s), and placement of Inyo Networks’ Supplied Equipment. Inyo Networks will configure, provision, and maintain its network and Inyo Networks’ Supplied Equipment to keep it in conformance with the specifications delineated for each type of Service (“Service Level Agreements”) as specified in the applicable Exhibit(s) (“Routine Maintenance”). If, however, the need for such Routine Maintenance is caused by or a result of Customer’s improper use or operation of Customer’s Equipment, Inyo Networks may charge Customer for such repair or maintenance. Inyo Networks will provide Customer with notice of the Routine Maintenance and schedule all Routine Maintenance to occur between the hours of 0000 and 0600 local time, unless the Parties agree to a different time.

5.      Service Outage: Inyo Networks makes no guarantee that any Service will be error free or free from Service interruptions. “Service Outage” shall mean a complete interruption, severe degradation, or failure of communication of the Customer’s Service between Demarcation Points, not caused by Force Majeure (defined below), Routine Maintenance, Customer’s Equipment, or Customer’s acts, or omissions, including, but not limited to any violation of the Acceptable Use Policy, any refusal to release the Service to Inyo Networks for maintenance, testing or repair, or any period in which Inyo Networks is not given access to Customer’s Premises. Thus, if Customer reports a Service is inoperative, but declines to release it for testing and repair, it is considered to be impaired, but shall not be deemed a Service Outage. The duration of a Service Outage is measured from the time the interruption is reported to or detected by Inyo Networks, whichever occurs first, and terminates at the time the Service(s) can pass traffic, subtracting any delay time associated with Inyo Networks inability to access the equipment and/or Inyo Networks’ facilities at Customer’s Premises. If Customer requests that Inyo Networks assist Customer in investigating any Service Outage and Inyo Networks determines that the Service Outage was not a result of Inyo Networks’ Supplied Equipment, network or facilities, Inyo Networks may invoice Customer for on-site Customer assistance at Inyo Networks’ then-current rates.

6.      Service Outage Credits: INYO NETWORKS’ MAKES NO GUARANTEE THAT ANY SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. As such, Customer’s sole and exclusive remedy for any Service Outage shall be the “Service Outage Credits” provided in the applicable Exhibit(s) attached to and incorporated in these Terms. The Service Outage Credit(s) are not compounding, Customer may not claim more than one credit for an impacted Service, and in no event, will the Service Outage Credits in any one (1) month exceed 100% of the MRC for such Service. To receive a Service Outage Credit(s), Customer must be in good standing with Inyo Networks, current in all its obligations, and notify Inyo Networks that it is exercising its right to receive a Service Outage Credit(s) within sixty (60) days of the Service Outage, or such right shall be waived.

7.      Regulatory and Legal Changes: In the event of any condemnation or exercise of the right of eminent domain, change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivery of Service, Inyo Networks and Customer will negotiate in good faith to allocate such cost(s). In the event that the Parties are unable to reach agreement respecting new rates within thirty (30) days after Inyo Networks' delivery of a notice (a) Inyo Networks may pass such increased costs through to Customer, and (b) Customer may terminate the affected Service Agreement without an Early Termination Charge by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.

8.      Default: A default shall occur under the Agreement if: (a) the Customer failures to pay any amount by the due date provided on the applicable invoice, and Customer continues to fail to pay such amount within ten (10) days after Inyo Networks notifies Customer in writing of such nonpayment, (b) any other material breach of the Agreement, which is not cured with-in thirty (30) days of receipt of written notice thereof; provided, however, a default shall not have occurred if the relevant Party has taken actions to cure within said time period and thereafter diligently pursues such actions to complete the cure, (c) Customer makes a material misrepresentation in any submission to Inyo Networks, (d) Customer violates Inyo Networks’ Acceptable Use Policy, or (e) a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankrupt-cy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; or an involuntary petition in bankruptcy or other insolvency protection is filed against either Party and not dismissed within one hundred twenty (120) days thereafter.  In the event of any default, the non-defaulting Party may: (a) take such actions as it determines, in its sole discretion, necessary to correct the default; (b) terminate the Service and the applicable Service Agreement; and/or (c) pursue any legal remedies it may have under applicable law or principles of equity, including specific performance.

9.      Blockage: If Customer violates any applicable laws, statutes, or other legal requirements with respect to a Service, or if Customer’s use of a Service interferes with or impairs Inyo Networks, or creates a risk of injury to any person or property damage, Inyo Networks may block Customer’s signals or suspend the Service. Inyo Networks will notify Customer immediately when such blockage or suspension occurs.  Both Parties shall work diligently to restore the affected Service. Any such blockage or suspension shall not be included as a Service Outage.

10.   Limitation of Liability: NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES OR THE COST OF PURCHASING REPLACEMENT SERVICES, ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT REGARDLESS OF THE FORESEEABILITY THEREOF EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER’S RIGHT TO CREDITS AS PROVIDED IN THESE TERMS SHALL BE CUSTOMER’S SOLE REMEDY FOR DAMAGES WITH REGARD TO SERVICE OUTAGES. CUSTOMER’S SOLE REMEDY FOR ANY UNCURED BREACH OF THESE TERMS IS TO TERMINATE THE USE OF SERVICE WITHOUT PENALTY. INYO NETWORKS’ LIABILITY AND THE EXCLUSIVE REMEDY OF CUSTOMER, FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THE AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS INVOICED TO CUSTOMER BY INYO NETWORKS DURING THE MONTHS PRIOR TO THE OCCURRENCE OF ANY CLAIM. IN THE EVENT OF CUSTOMER’S MATERIAL BREACH OF ANY PROVISION OF THESE TERMS, INYO NETWORKS, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO IT HEREUNDER, AT LAW, IN EQUITY, OR UNDER ANY APPLICABLE TARIFF, MAY SUSPEND OR TERMINATE THE PROVISION OF SERVICE TO CUSTOMER.

11.   Disclaimer of Warranties: INYO NETWORKS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INYO NETWORKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

12.   Force Majeure: Neither Party is liable for any failure of performance nor shall any credit allowance or other remedy be extended, for any failure of performance due to any cause or causes beyond such Party’s reasonable control, including without limitation, acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, power outages or failure, war, revolution, civil commotion, acts of public enemies, terrorism or national emergency, governmental action or inaction (such acts including without limitation any regulatory or administrative decisions making said performance or obligation economically or technically unfeasible), condemnation or the exercise of rights of eminent domain, labor difficulties, failure of any third party, including any other carrier or supplier, to provide services, facilities or equipment required for such performance or obligation, or any other act or omission by said third party. Either Party’s invocation of this clause shall not relieve Customer of its obligation to pay for any Services provided to Customer prior to the force majeure event.  In the event Inyo Networks is unable to deliver Service for seven (7) consecutive days as a result of any force majeure event, Customer shall not be obligated to pay Inyo Networks for the affected Service for so long as Inyo Networks is unable to deliver; provided, however, that the Service Term of such Service shall be extended for the period of time that the force majeure event continues.

13.   Assignment and Resale: Except as provided below, Customer may not assign its rights and obligations under a Service Agreement without the express prior written consent of Inyo Networks. Customer shall have the right to assign, or otherwise transfer these Terms, in whole or in part, to any parent, subsidiary or affiliate of Customer which shall control, be under the control of, or be under common control with Customer, provided such assignee assumes in writing all of the terms and conditions of these Terms and such assumption is delivered to Inyo Networks prior to the effective date of such permitted assignment. As a condition to such assignment, (i) Customer shall cause the permitted transferee or assignee to be bound, in writing, by the rates, terms and conditions, set forth herein and (ii) Customer shall remain primarily liable for the payment of all charges due under each Service Agreement. Any purported assignment and transfer made in violation of this Section is void. Customer may resell the Service to third party "end users," provided that Customer agrees to indemnify, defend and hold Inyo Networks harmless from claims made against Inyo Networks by such end users or by any third party, including, without limitation, any governmental authority. Further, Customer agrees to obtain all necessary certifications, licenses, franchises, or other requirements from any public agency having jurisdiction over the Customer’s resale operations.

14.   Indemnification: Subject to the limitations set forth in Section 10 above, each Party shall indemnify and hold harmless the other Party, its employees, agents, officers and directors from and against all liabilities, claims, damages, losses, costs, expenses and judgments, including reasonable attorneys’ fees, and causes of action arising out of the negligence or willful misconduct of the indemnifying Party in the performance of, or related to the indemnifying Party’s duties or obligations under the Agreement or any Service Agreement. In addition, Customer will indemnify, hold harmless, and defend Inyo Networks and its affiliates, and their respective officers, directors, employees, agents and subcontractors from liabilities, claims or damages and expenses whatsoever, including reasonable attorneys’ fees, arising out of or in connection with (a) any and all costs, claims, taxes, charges, and surcharges levied against Inyo Networks relative to Customer’s claim for tax exempt status with respect to Taxes to the extent that such exempt status is not found to be valid, (b) any liens placed on Inyo Networks’ provided Customer premises equipment due to Customer’s action or inaction, (c) personal injury or death or damage to property related to Customer’s failure to meet any 911/E911 requirements or agreements or the failure to give end users appropriate warnings if VoIP services are provided by Inyo Networks, or the failure to maintain the necessary databases, (d) claims by Inyo Networks  or third parties for damage to real or tangible personal property or for bodily injury or death which is caused by Customer and is directly due to Customer’s negligence or willful misconduct or which is caused by hazards created by Customer’s equipment  or facilities, and (e) Customer’s improper use of the Services and/or Customer’s end-users or third parties improper use of the Services, resale, or sharing of the Services in violation of any applicable law or in violation of any provision of these Terms. Inyo Networks shall have no liability to Customer’s customers in relation to any Service and Customer shall indemnify Inyo Networks for any and all costs, damages, liabilities and expenses arising out of, or relating to, any claim by any such customer or end user.

15.   Governing Law: Inyo Networks has filed, or may elect to file, with the appropriate regulatory agency(ies), tariffs respecting the delivery of certain Service(s). Tariff(s) are, or upon filing will be deemed to be, incorporated herein by this reference and made a part hereof and, upon posting on Inyo Networks’ website, will be incorporated herein by this reference. Such tariff(s) in effect at the time of the Service Agreement, is binding upon all Services ordered by Customer, and in the event such provisions are inconsistent with the terms of a Service Agreement the terms set forth in the applicable tariff shall control. The Agreement shall be governed and interpreted under the laws of the State of California, without regard to California’s conflict of law principles. The Parties agree that any action related to the Agreement shall be brought under the jurisdiction and venue of the State of California, County of San Bernardino regardless of the appropriateness of any other jurisdiction.  The Parties agree that any claims, actions, disputes or controversies of any kind arising out of the Agreement shall be adjudicated in the State of California County of San Bernardino.

16.   Prevailing Party: If suit is brought, by either Party, to enforce the Agreement, the prevailing Party shall be entitled to recover, in addition to any other remedy, the reimbursement of reasonable attorneys’ fees, court costs, costs of investigation and other related expenses incurred.

17.   Confidentiality: During the course of the Parties’ relationship, either Party may have access to certain information, the ownership and confidential status of which is highly important to the other Party and is reasonably designated by one of the Parties as confidential (herein referred to as “Confidential Information”).  The Each Party shall use the highest degree of care in safeguarding the other’s Confidential Information against loss, theft, or other inadvertent disclosure and take all steps necessary to maintain such confidentiality. The Parties agree that neither shall publish, communicate, disclose or cause to be published, communicated, or disclosed in any manner whatsoever or to any person whatsoever, such Confidential Information, except information that is: (a) publicly available other than through a breach of the Agreement, (b) lawfully in the possession of the recipient before disclosure by the other Party and is not otherwise subject to a confidentiality undertaking, (c) obtained through a third party that is free to disclose it, and (d) required by law to be disclosed and then only to the extent legally permissible, and only after reasonable advance notice to the disclosing Party. 

18.   Insurance: During the Service Term, each Party shall obtain and maintain not less than the insurance coverage as required by statute or as standard within the Party’s industry. Such insurance coverage will not limit the liability of either Party.

19.   Entire Agreement: These Terms, Exhibits, any tariff(s), Inyo Networks’ Acceptable Use Policy, and Service Agreements attached hereto or to be attached hereto, and any documents incorporated by reference herein, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, understandings, and agreements with respect hereto, whether oral or written, and the terms of any Customer paper issued in connection with these Terms. Customer has been provided with the opportunity to review and negotiate the Agreement and consult counsel; therefore, in the event of any ambiguities, no inferences shall be drawn against Inyo Networks.

20.   Order of Precedence: In the event of a conflict between these Terms and any Exhibit(s) attached hereto, the terms and conditions of the Exhibit(s) shall control, but only to the extent of any such conflict.  In the event of a conflict between the terms and conditions of these Terms, attached Exhibit(s), and/or any Service Agreement attached hereto, the terms and conditions of the Service Agreement shall control, but only to the extent of any such conflict.

21.   Publicity and Logo Usage: Customer grants to Inyo Networks at Inyo Networks’ discretion, the ability to (a) identify the Customer as a Customer of Inyo Networks, (b) hyperlink from an appropriate area within Inyo Networks’ website to the Customer’s home page; and (c) display the Customer’s logo on the Inyo Networks website, in accordance with the Customer’s guidelines for the use of such mark.

22.   Severability: In the event any language contained in these Terms is held invalid, illegal, or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of these Terms shall in any way be affected thereby.

23.   Amendments: These Terms may be amended only by a written instrument executed by the Parties.

24.   Waiver: No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power, or privilege hereunder shall operate as a waiver thereof, except as expressly provided herein.

25.   Relationship to Parties: The Parties shall perform all of their duties under these Terms as independent contractors or independent parties and shall discharge their contractual obligations at their own risk, subject, however, to the terms and conditions thereof.  The relationship between the Parties shall not be deemed to be that of an agent and principal, partners, or joint venturers, and nothing contained in these Terms shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to, tax purposes. The Parties understand and agree that, except as specifically provided in these Terms, neither Party grants the other Party the power or authority to make any commitments on behalf of the other Party.

Notices: All notices, demands, requests, or other communications which may be, or are required to be, given or served, or sent by any Party to any other Party pursuant to these Terms, or the Agreement, shall be in writing and will be deemed to have been duly delivered or given when: (i) delivered by hand, with written confirmation of receipt, before 5:00 p.m. PST on a business day, or otherwise on the next succeeding business day; (ii) sent by facsimile before 5:00 p.m. PST on a business day, or otherwise on the next succeeding business day, and a written confirmation of the transmission is received by the sender; or (iii) the next business day after being deposited for delivery with a nationally recognized overnight delivery service, such as Federal Express, and addressed or sent, as the case may be, to the appropriate addresses or facsimile numbers set forth on the cover sheet. All notices to Customer under these Term, or the Agreement, may also be delivered by bill message or insert incorporated in or with the Customer’s invoice by its normal means of transmission. Customer’s notices will be sent to the address provided on the Service Agreement, and in the event of multiple addresses, to the billing address.  In the case of a notice to Inyo Networks, all notices shall be sent to 10630 Town Center Drive, Rancho Cucamonga, CA 91730, to the attention of Nick Keller President/COO. Each Party may designate by written notice a new address, to which any notice, demand, request or communication may thereafter be so given, served or sent.

Exhibit A

Optical Ethernet Transport Services

Service Level Agreement

1.      Definitions

1.1.    Bandwidth Profile is the maximum data throughput allowable. Thus, such limit may not be exceeded nor “burst.”

1.2.    Class of Service (“CoS”) or Quality of Service (“QoS”) is a parameter used in data and voice protocols to differentiate the types of payloads contained in the packet being transmitted. This allows grouping of similar types of traffic (into a class) that then can be managed within a network by setting priority levels for the different groups/classes.

1.3.    Collapsed Dual Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are in the same conduit and entry into the building.

1.4.    Committed Information Rate (“CIR”) is the bandwidth available on a Service.

1.5.    Data Channel Protection is diversity created through equipment configuration, software, not a physically diverse route.

1.6.    Diverse Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are not in the same conduit or entry into the building.

1.7.    Ethernet is a type of protocol that delivers data packets between two or more specified points. Each Ethernet circuit will have a total Bandwidth Profile. Bandwidth is inclusive of allowances for overhead within the Ethernet network.

1.8.    Jitter is the variation in the Latency on a packet flow between two systems, when some packets take longer to travel from one system to the other.

1.9.    Latency is the one-way delay of packets from the source to the destination, occurring between Demarcation Points.

1.10.  Layer 2 is the second layer of the seven-layer Open Systems Interconnection (OSI) model of computer networking.

1.11.  Layer 2 VPN Managed Service (“Layer 2 VPN”) is Layer 2 Ethernet VC (“EVC”) using pre-provisioned paths for point-to-point, point-to-multipoint and any-to-any EVCs that supports CoS attributes including variable bandwidth, flexible prioritization, and optional bursting for individual Layer 2 VLANs.

1.12.  Metropolitan Area Network (“MAN”) is a network that interconnects users with computer resources in a geographic area or region larger than that covered by a large local area network (“LAN”).

1.13.  Off-Net means that Inyo Networks does not have facilities to accommodate Customer’s desired route, so Inyo Networks purchases such facilities, on Customer’s behalf, from a third-party provider. In the event of a Service Outage impacting such Services, Inyo Networks will pass-through credit(s) received from the provider to Customer proportionately.

1.14.  On-Net means that Inyo Networks has the facilities to provide Customer’s Service within Inyo Networks’ network.

1.15.  Packet Loss is the percentage of packets that were not sent and received successfully from the source to the destination, occurring between Demarcation Points.

1.16.  Route Protection is a physically diverse route configuration that includes dual entrance into a building.

1.17.  Single Fiber Optic Lateral is one (1) lateral, a segment off of Inyo Networks’ fiber network.

1.18.  Virtual Circuit (“VC”) is a means of transporting data over a packet switched computer network in such a way that it appears as though there is a dedicated physical layer link between the source and destination end systems.

 2.      Types of Ethernet Services

2.1.    Ethernet Private LAN Service (“EPL”) is a dedicated data service that interconnects two Demarcation Points within Inyo Networks’ MAN. Connections at the Customer’s Premises are made using a native Ethernet interface with a set CIR.  The EPL configuration provides Customer with a logical point to point connection between two Customer Premises, using a physical connection to Inyo Networks and a dedicated connection through Inyo Networks’ MAN.  EPL is configured with Route Protection as standard with “Data Channel Protection” options.  Bandwidth options are 50 Mb, 100 Mb, 1,000 Mb, and 10 Gb.

2.2.    Ethernet Virtual Private Line Service (“EVPL”) is an optically switched data service that interconnects two locations within Inyo Networks’ MAN.  Connections at the Customer locations are made using a native Ethernet interface with a set CIR. EVPL includes the connections from the Customer’s location to Inyo Networks’ MAN. The EVPL configuration provides Customer with a logical point-to-point connection between two of Customer’s Premises, using a physical connection to Inyo Networks and a switched connection through Inyo Networks’ MAN.  EVPL is offered at both On-Net and Off-Net locations, but Off-Net locations are serviced through the utilization of a Type II access circuit(s) which will have different service level guarantees and overall delivery differences. EVPL can be configured as either Route Protection and Data Channel Protection when both Demarcation Points of the EVPL circuit are On-Net. Layer 2 VPN may be added on to this Service.

2.2.1.  EVPL supports a “point-to-point” circuit configuration for a single circuit and an “aggregated port” circuit configuration for multiple circuits physically terminating on a common physical port.  There is an additional NRC and MRC charges for an aggregated port configuration.

2.2.2.  EVPL has three different service options: Best Effort, Standard and Burst:

2.2.2.1.  “Best Effort EVPL” is available at a bandwidth rate of 10 Mb and 100 Mb. No Network Performance Guarantees (see Section 5 below) are offered for this Service option and it is only available for On-Net circuit(s).

2.2.2.2.  “Standard EVPL” is available at any CIR from 5 Mb to 10 Gb. Service is offered with SLAs that cover CIR, Latency, Jitter and Packet Loss.  There are different sets of SLAs for Latency, Jitter and Packet Loss depending on if service is delivered On-Net versus Off-Net, the Service Agreement will provide such information.

2.2.2.3.  “Burstable Bandwidth EVPL” offers a CIR EVPL service, plus the opportunity to use additional bandwidth beyond the CIR up to the limit of the agreed to interconnection. Service is Best Effort for bandwidth above the agreed to CIR.  Burstable EVPL service is available when both ends of the circuit are On-Net within Inyo Networks’ MAN.

2.3.    Ethernet Virtual Private LAN Service (“EVLAN”) is an optically switched data service that interconnects three or more locations within Inyo Networks’ MAN.  Connections at the Customer’s Demarcation Points are made using a native Ethernet interface with a set CIR. EVLAN includes the connections from the Customer’s Demarcation Points to Inyo Networks’ MAN. The EVLAN configuration provides Customer with a logical point-to-multipoint or an “any point to any point” connection between the Customer’s Demarcation Points, using a physical connection to Inyo Networks and a virtual connection through Inyo Networks’ MAN.  Bandwidth can be provisioned at each port with a CIR of 1.5 Mb to 500 Mb in increments of 1 Mb.  EVLAN is offered at both On-Net and Off-Net locations, but Off-Net locations are serviced through the utilization of a Type II access circuit(s) which will have different service level guarantees and overall delivery differences.  EVLAN can be configured as either Route Protection and Data Channel Protection when both Demarcation Points of the EVPL circuit are On-Net. Layer 2 VPN may be added on to this Service.

3.      Service Outage Credits:

MSA Ethernet.jpg

4.      Chronic Service Outage: Is a Service Outage of an Ethernet Service, provided in this Exhibit, that has experienced three (3) or more Service Outages in excess of thirty (30) minutes occur in a continuous forty-five (45) day period. If an Ethernet Service experiences a Chronic Service Outage, Customer may, within thirty (30) days of the Service Outage qualifying the Service as experiencing a Chronic Service Outage, disconnect the affected Service without incurring an Early Termination Charge.

5.       Network Performance Guarantees:

MSA Ethernet Service.jpg

6.      Network Performance Guarantee Credits – If the EPL Layer 2, EVPL Layer 2, or the EVLAN Service fails to meet the Network Performance Guarantee provided above, the event will qualify as a Service Outage, and Customer will be eligible for a Service Outage Credit in the amount of five percent (5%) of the impacted Service’s MRC. The statistics for Packet Loss, Latency, and Jitter shall be calculated by averaging all samples from the previous month. Customer may obtain no more than one (1) credit for any given month.

 

Exhibit B

Internet Access Services

Service Level Agreement

1.      Definitions

1.1.    Bandwidth Profile is the maximum data throughput allowable. Thus, such limit may not be exceeded nor “burst.”

1.2.    Best Efforts means that Inyo Networks does not provide any Network Performance Guarantees that the data will be delivered within a specified time or rate because the traffic is not given priority so delivery depends on the current load.

1.3.    Border Gateway Protocol (“BGP”) is a standardized gateway protocol designed to exchange routing and reachability information among autonomous systems on the Internet.

1.4.    Collapsed Dual Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are in the same conduit and entry into the building.

1.5.    Committed Information Rate (“CIR”) is the bandwidth available on a Service.

1.6.    Diverse Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are not in the same conduit or entry into the building.

1.7.    Domain Name is part of a network address that identifies who it belongs to.

1.8.    IP Address is a unique string of numbers that identifies each computer using Internet Protocol (“IP”). The IP Address(es) assigned to the Customer remain the property of Inyo Networks and Customer is granted the right to use such for the duration of the applicable Service Term. At the conclusion of the Service Term, the IP Address(es) will be reassigned by Inyo Networks.

1.9.    Jitter is the variation in the Latency on a packet flow between two systems, when some packets take longer to travel from one system to the other.

1.10.  Latency is the one-way delay of packets from the source to the destination, occurring between Demarcation Points.

1.11.  Layer 2 (also known as the data link layer) is the second layer of the seven-layer Open Systems Interconnection (OSI) model of computer networking.

1.12.  Off-Net means that Inyo Networks does not have facilities to accommodate Customer’s desired route, so Inyo Networks purchases such facilities, on Customer’s behalf, from a third-party provider. In the event of a Service Outage impacting such Services, Inyo Networks will pass-through credit(s) received from the third-party provider to Customer proportionately.

1.13.  On-Net means that Inyo Networks has the facilities to accommodate Customer’s desired route within Inyo Networks’ network.

1.14.  Packet Loss is the percentage of packets that were not sent and received successfully from the source to the destination, occurring between Demarcation Points.

1.15.  Peak Information Rate (“PIR”) is a burstable rate sent on routers which allows throughput overhead.

1.16.  Single Fiber Optic Lateral is one (1) lateral, a segment off of Inyo Networks’ fiber network.

 2.      Ethernet Internet Access Service (“EIA”):  Available at any CIR from 3 Mb to 1,000 Mb. Customer may request an increased Bandwidth Profile at any time, provided such change does not exceed the physical line rate of the port on which the circuit is provisioned. The Demarcation Point is an Ethernet interface provided by Inyo Networks. EIA is offered at both On‑Net and Off-Net locations. EIA includes management of one (1) Customer Domain Name, and Customer may elect to be assigned up to eight (8) IP Addresses. EIA has two different service options: Standard and Burstable:

2.1.    EIA Standard Service is Internet access at a specified, mutually agreeable bandwidth and has Network Performance Guarantees (see Section 6 below) for CIR, Layer 2 and Layer 3 Latency, Jitter and Packet Loss.

2.2.    EIA Burstable Service provides a CIR, but offers Customer the opportunity to use additional bandwidth in excess of the CIR. Customer may burst its usage at any time, provided it does not exceed the contracted PIR. Inyo Networks will measure bandwidth usage, incoming and outgoing, in five (5) minute intervals, for each point of connection between the Customer and Inyo Networks.  At the end of each month, all data samples in each category will be sorted from highest to lowest and the top five percent (5%) of measurements will be discarded. The category with the lowest value at the ninety-five percent (95%) will be discarded.  The remaining data sample will then be used for billing purposes. The bandwidth at 95% is then subtracted from the CIR.  The difference in bandwidth shall be billed at the amount stated in the applicable Service Agreement. EIA Burstable has Network Performance Guarantees (see Section 6 below) for CIR, Layer 2 and Layer 3 Latency, Jitter and Packet Loss, however, all burst bandwidth, bandwidth in excess of the CIR, is Best Effort and does not qualify for Network Performance Guarantees.

 3.      Internet Access Service: Inyo Networks can provide a connection with a Bandwidth Profile and CIR from 1Mb to 1,000Mb to the Internet backbone, and the Service may be delivered over a single circuit (“Internet Access Service”). Customer may optionally procure from Inyo Networks equipment that will convert the handoff to an Ethernet interface provided by Inyo Networks. Internet Access Service has Network Performance Guarantees (see Section 6 below) for CIR, Layer 2 and Layer 3 Latency, Jitter and Packet Loss. Internet Access Service is offered with management of one (1) Customer Domain Name, and may select up to eight (8) IP Addresses. Customer may purchase the following additional options to the Internet Access Service:

 3.1.    Reverse DNS Management: Inyo Networks will map a domain name to an IP address.

3.2.    Additional IP Addresses: Assignment of additional IP addresses;

3.3.    BGP Peering: Peering services is only available if the Customer has: a) two or more Internet connections (multi-homed); b) an autonomous system number (ASN); c) a router that supports BGP4; d) worked with Inyo Networks in advance of the service implementation to determine if Customer will receive a default route to the Internet, partial or full Internet routes which are both provided by Inyo Networks Internet Access suppliers; e) a router that is capable and configured to contain the additional routes in (d) and the associated overhead; provided Inyo Networks with all the net-blocks Customer wishes to announce to the Internet; and (e) included outbound route filtering as part of its configuration, to help prevent improper route announcements.

4.      Service Outage Credits:

MSA Internet.jpg

5.      Chronic Service Outage: Is a Service Outage of an Internet Access Service, provided in this Exhibit, that has experienced three (3) or more Service Outages in excess of thirty (30) minutes occur in a continuous forty-five (45) day period. If an Ethernet Service experiences a Chronic Service Outage, Customer may, within thirty (30) days of the Service Outage qualifying the Service as experiencing a Chronic Service Outage, disconnect the affected Service without incurring an Early Termination Charge.

6.      Network Performance Guarantees:

Internet Service.jpg

7.      Network Performance Guarantee Credits – If the actual monthly average packet delivery on the Inyo Networks Internet Access Service fails to meet the Network Performance Guarantee provided above, Inyo Networks will credit the Customer five percent (5%) of the impacted Service’s MRC.

 

Exhibit C

Optical Carrier Private Line Services

Service Level Agreement

1.      Definitions

1.1.    Collapsed Dual Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are in the same conduit and entry into the building.

1.2.    Diverse Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are not in the same conduit or entry into the building.

1.3.    Off-Net incorporates one or more local loop connections from the Customer’s Demarcation Points to Inyo Networks’ point of presence utilizing facilities not owned by Inyo Networks. Inyo Networks will purchase such facilities, on Customer’s behalf, from a third-party provider. In the event of a Service Outage impacting such Services, Inyo Networks will pass-through credit(s) received from the third-party provider to Customer proportionately.

1.4.    On-Net means Inyo Networks has the facilities to accommodate Customer’s Service within Inyo Networks’ network.

1.5.    Route Protection provided via SONET, not a physically diverse route.

1.6.    SONET (Synchronous Optical Network) is an interface standard for connecting fiber-optic transmission systems which allows data streams at different rates to be multiplexed.

 2.      Optical Carrier Private Line Service is a point-to-point and multi-point service which provides Customer with the transmission of synchronous serial data.  Transport circuits are available at speeds of DS1, DS3, OC-3, OC-12, and OC-48, depending upon capacity available and geographical reach.  Service is always provided with SONET based Route Protection.  Service is available with both protected and un-protected data channel configurations set on Customer’s equipment.  Availability will be confirmed with Customer at the time of order.

3.      SONET Ring Service provides Customer with exclusive use of a SONET based fiber optic ring service with a specified network capacity of OC-12, OC-48 or OC-192.  Customer may configure the combination of all its hand-offs for all nodes up to the total specified network capacity.  Customer may add additional nodes and/or reconfigure the existing node configuration up to the total specified network capacity. Any network reconfiguration and/or augmentation are subject to the applicable fees.  Service and facility availability for the initial Service Agreement and any subsequent reconfiguration or augmentation will be confirmed with Customer at the time of order. 

 4.      Service Outage Credits:

MSA Optical.jpg

5.      Chronic Service Outage: Is a Service Outage of an Optical Service, provided in this Exhibit, that has experienced three (3) or more Service Outages in excess of thirty (30) minutes occur in a continuous forty-five (45) day period. If an Ethernet Service experiences a Chronic Service Outage, Customer may, within thirty (30) days of the Service Outage qualifying the Service as experiencing a Chronic Service Outage, disconnect the affected Service without incurring an Early Termination Charge.

6.      Maintenance of Third Party Facilities: To the extent that a Service Agreement includes the use of facilities from a third-party supplier, the Customer acknowledges that maintenance of such facilities is solely the responsibility of the third-party supplier and that Inyo Networks will provide such maintenance notice as it receives, if at all, from the underlying third-party supplier. Customer shall not be entitled to any Service Outage Credits for any outage resulting from such third-party maintenance. 

Exhibit D

Managed Wavelength Services

Service Level Agreement

1.      Definitions

1.1.    Coarse Wave Division Multiplexing (“CWDM”) is a method of combining multiple signals on laser beams at various wavelengths for transmission along fiber optic cables which are spaced 20 nanometers apart, thus creating the need for fewer channels than DWDM.

1.2.    Dense Wavelength Division Multiplexing (“DWDM”) is a method of combining multiple signals on laser beams at various wavelengths for transmission along fiber optic cables which are spaced 0.4 nanometers apart, thus creating the need for more channels than CWDM.

1.3.    Off-Net incorporates one or more local loop connections from the Customer’s Demarcation Points to Inyo Networks’ point of presence utilizing facilities not owned by Inyo Networks. Inyo Networks will purchase such facilities, on Customer’s behalf, from a third-party provider. In the event of a Service Outage impacting such Services, Inyo Networks will pass-through credit(s) received from the third-party provider to Customer proportionately.

1.4.    On-Net means Inyo Networks has the facilities to accommodate Customer’s Service within Inyo Networks’ network.

1.5.    Protection configuration means that the two fibers will utilizes diverse fiber pairs and additional wavelengths for auxiliary path purpose.

1.1.    Route Protection provided via SONET, not a physically diverse route.

1.6.    SONET (Synchronous Optical Network) is an interface standard for connecting fiber-optic transmission systems which allows data streams at different rates to be multiplexed.

1.7.    Unprotected configuration means that the two fibers will be in the same cable providing no diversity and no protection in the event of a fiber cut.

 2.      Wavelength Service an optical, point-to-point, metro transport offering between Demarcation Points. Wavelength Service enables end-to-end transportation of a high capacity, 2.5 Gbs or 10 Gbs, signal between two specified locations. Inyo Networks offers a Standard Managed Wavelength Service or a Dedicated Managed Wavelength Service as follows:

 2.1.    Standard Managed Wavelength Service is a wavelength service that utilizes a shared infrastructure transmission system carrying other wavelengths. Inyo Networks will install equipment at the Demarcation Points that utilizes two fiber optic cables, one carrying the transmit wavelength and one carrying the receive wavelength, between the Demarcation Points. Shared Managed Wavelength Service is offered with Unprotected and Protected configurations and can be provisioned using either DWDM or CWDM technology.

 2.2.    Dedicated Managed Wavelength Service is a wavelength service that is provided on fiber and equipment facilities that are dedicated for the exclusive use of Customer. Inyo Networks will install equipment at the Demarcation Points that utilizes two fiber optic cables, one carrying the transmit wavelength and one carrying the receive wavelength, between the Demarcation Points. Dedicated Managed Wavelength Service is offered with Unprotected and Protected configurations and can be provisioned using either DWDM or CWDM technology.

 3.      Service Outage Credits:

MSA Wavelength.jpg

4.      Chronic Service Outage: Is a Service Outage of an Optical Service, provided in this Exhibit, that has experienced three (3) or more Service Outages in excess of thirty (30) minutes occur in a continuous forty-five (45) day period. If an Ethernet Service experiences a Chronic Service Outage, Customer may, within thirty (30) days of the Service Outage qualifying the Service as experiencing a Chronic Service Outage, disconnect the affected Service without incurring an Early Termination Charge.

 5.      Network Performance Guarantee (Bit Error Rate): If the actual monthly average delivery on the Inyo Networks Managed Wavelength Service the Bit Error Rate for any circuit is greater than 1 x 10 (-12) (or BBER of 2.0E -6), Inyo Networks will credit the Customer five percent (5%) of the impacted Service’s MRC.

 6.      Maintenance of Third Party Facilities: To the extent that a Service Agreement includes the use of facilities from a third-party supplier, the Customer acknowledges that maintenance of such facilities is solely the responsibility of the third-party supplier and that Inyo Networks will provide such maintenance notice as it receives, if at all, from the underlying third-party supplier. Customer shall not be entitled to any Service Outage Credits for any outage resulting from such third-party maintenance. 

Exhibit E

Point-to-Point Service

Service Level Agreement

1.      Definitions

 1.1.    Coarse Wave Division Multiplexing (“CWDM”) is a method of combining multiple signals on laser beams at various wavelengths for transmission along fiber optic cables which are spaced 20 nanometers apart, thus creating the need for fewer channels than DWDM.

1.2.    Collapsed Entrance Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are in the same conduit and entry into the building.

1.3.    Dense Wavelength Division Multiplexing (“DWDM”) is a method of combining multiple signals on laser beams at various wavelengths for transmission along fiber optic cables which are spaced 0.4 nanometers apart, thus creating the need for more channels than CWDM.

1.4.    Diverse Fiber Optic Laterals are laterals, segments off the fiber network that are usually used to connect a building to Inyo Networks’ existing fiber infrastructure, that are not in the same conduit or entry into the building.

1.5.    Off-Net incorporates one or more local loop connections from the Customer’s Demarcation Points to Inyo Networks’ point of presence utilizing facilities not owned by Inyo Networks. Inyo Networks will purchase such facilities, on Customer’s behalf, from a third-party provider. In the event of a Service Outage impacting such Services, Inyo Networks will pass-through credit(s) received from the third-party provider to Customer proportionately.

1.6.    On-Net means Inyo Networks has the facilities to accommodate Customer’s Service within Inyo Networks’ network.

1.7.    Point of Presence (“POP”) is a location where Inyo Networks has facilities.

1.8.    Route Protection provided via software, not a physically diverse route.

1.9.    Time-Division Multiplexing (“TDM”) is a method of transmitting and receiving two or more signals over the same path by taking a series of pulses or packets and interleaving with another signal to transmit such as a continuous stream.

 2.      Service

 2.1.    Inter-City Private Line Service is a point-to-point connection between city pairs (for example, Las Vegas to Salt Lake City) on Inyo Networks’ facilities.  Service is available with either native Ethernet or TDM based transport and may be order as Service that is between “POP‑to‑POP”, “POP‑to‑Premise” or “Premise‑to‑Premise” as follows:

2.1.1.  POP‑to‑POP service defined as intercity transport between two of Inyo Networks’ POPs. Hand-off between Inyo Networks and Customer is at Demarcation Points agreeable to Inyo Networks within the facilities housing the POP. Customer is responsible for establishing both interconnections and any third-party cross-connect fees for the interconnection.

2.1.2.  POP-to-Premise is defined as intercity transport between one POP in a city, and a location either On-Net or Off-Net to the Inyo Networks’ metropolitan network in the second city.  Hand-off between Inyo Networks and Customer is at a Demarcation Point within the facilities housing the Inyo Networks’ POP.  Customer is responsible for establishing the interconnection and all third-party cross-connect fees for the interconnection.

2.1.3.  Premise-to-Premise service is defined as intercity transport between two locations either On-Net or Off-Net to Inyo Networks’ metropolitan network in both cities. 

3.      Service Outage Credits:

MSA Private Line.jpg

4.      Chronic Service Outage: Is a Service Outage of an Internet Access Service, provided in this Exhibit, that has experienced three (3) or more Service Outages in excess of thirty (30) minutes occur in a continuous forty-five (45) day period. If an Ethernet Service experiences a Chronic Service Outage, Customer may, within thirty (30) days of the Service Outage qualifying the Service as experiencing a Chronic Service Outage, disconnect the affected Service without incurring an Early Termination Charge.

5.      Maintenance of Third Party Facilities: To the extent that a Service Agreement includes the use of facilities from a third-party supplier, the Customer acknowledges that maintenance of such facilities is solely the responsibility of the third-party supplier and that Inyo Networks will provide such maintenance notice as it receives, if at all, from the underlying third-party supplier. Customer shall not be entitled to any Service Outage Credits for any outage resulting from such third-party maintenance.