Fiber Internet Access Service Level Agreement

This Service Level Agreement (“SLA”) for Vivant Enterprise (“Vivant”) Fiber Internet Access (referred to herein as “FIA” or the “Service”) is a part of, and hereby incorporated by reference into the Vivant Enterprise Service Agreement (including the terms and conditions, attachments, and Service Orders described therein, the “Service Agreement”). To the extent any provision of this SLA conflicts with the Service Agreement, this SLA shall control. Performance goals for the Services (“SLA Targets”) are set forth in the tables below. Capitalized words used but not defined herein shall have the meanings assigned to them in the Service Agreement.

I. Priority Classification and Definitions

Priority classifications for Service Disruptions and Service Degradations are described as follows:

As used in this SLA, the following terms have the meanings assigned below:

“Service Disruption” is defined as an outage, disruption, or degradation, other than an Excluded Disruption, that interferes with the ability of a Vivant network hub to:

1. transmit and receive network traffic on Customer’s dedicated access port at the Vivant network hub; or
2. exchange network traffic with another Vivant network hub.

The Service Disruption period begins on the earlier of

1. when Vivant opens a trouble ticket in connection with a Service Disruption that Vivant detects and verifies, or
2. when Customer reports a Service Disruption by contacting Enterprise Technical Support, and then Vivant validates that the Service is affected and creates a corresponding trouble ticket. The Service Disruption ends when the affected Service has been restored.

“Service Degradation” means a degradation of the Service, such as failure of the Service to achieve the SLA Targets for Latency/Frame Delay, Jitter/Frame Delay Variation, or Packet Delivery.

“Excluded Disruptions” means

• planned outages,
• routine or urgent maintenance,
• time when Vivant is unable to gain access to Customer’s Service Location to troubleshoot, repair or replace equipment or the Service,
• Service problems resulting from acts or omissions of Customer or Customer’s representatives or agents,
• Customer equipment failures,
• Customer does not release the Service for testing, and
• Force Majeure Events.

II. SLA Targets for FIA Service

SLA Targets are measured from Customer’s Service Location to the location where Vivant Enterprise (“Vivant”) has local access to the Internet (i.e., the Vivant point of presence) at the individual circuit or Service level, and any applicable credits are issued only for the affected FIA circuit or Service (the “Affected Service”).

III. SLA Calculations

1. Service Availability

“Service Availability” is calculated as the total number of minutes in a calendar month, less the number of minutes in the calendar month that the Service is unavailable due to a Priority 1 Outage (“Downtime”), with such difference divided by the total number of minutes in the calendar month, and expressed as a percentage.

2. Mean Time to Restore (“MTTR”)

The MTTR SLA Target is applicable to Priority 1 Outages and is measured, each calendar month, as the average time for Vivant to restore Priority 1 Outages calculated as the cumulative length of time it takes Vivant to restore a Service following a Priority 1 Outage divided by the corresponding number of trouble tickets for Priority 1 Outages opened during the respective calendar month for the Service.

3. Latency/Frame Delay

Latency or Frame Delay is the average roundtrip network delay, measured every five (5) minutes during a calendar month (except during an Excluded Disruption), to adequately determine a consistent average monthly performance level for frame delay for each Service. The roundtrip delay is expressed in milliseconds (ms).

4. Packet Delivery

Packet Delivery is defined as the percentage of frames that are successfully received compared to the total frames that are sent in a calendar month (except during an excluded Disruption). The percentage calculation is based on frames that are transmitted from a network origination point and received at a network destination point.

5. Jitter/Frame Delay Variation

Jitter or Frame Delay Variation is defined as the variation in delay for two consecutive frames that are transmitted (one way) from a network origination point and received at a network destination point. Vivant measures a sample set of frames every five (5) minutes during a calendar month (except during an Excluded Disruption), and determines the average delay between consecutive frames within each sample set. The monthly Jitter/Frame Delay Variation is calculated as the average of all of the frame delay variation measurements during such calendar month and is expressed in milliseconds (ms).

IV. Remedies

1. Service Credits

If a Service fails to satisfy the SLA Targets during any calendar month and Customer is in compliance with the terms of the Service Agreement and this SLA, then Customer may request credit equal to the corresponding percentage of monthly recurring charges (“MRC”) for the Affected Service as set forth in the tables below. Any credit to be applied will be offset against amounts due from Customer to Vivant in the billing cycle following the date Vivant makes its credit determination. Credit requests must be submitted to Vivant within thirty (30) days of the calendar month in which the SLA Target was missed. Vivant will exercise commercially reasonable efforts to respond to such credit requests within thirty (30) days of receipt thereof.

All SLA Targets are monthly measurements, and Customer may request only one credit per SLA Target per month for the Affected Service. Should one event impact more than one SLA hereunder, Customer shall receive the single highest of the qualifying credits only. Service Credits hereunder shall not be cumulative per Service. The aggregate credit amount due to Customer in any month will not exceed 100% of the MRC for the Affected Service. Except as set forth below, the credits described in this SLA shall constitute Customer’s sole and exclusive remedy, and Vivant’s sole and exclusive liability, with respect to any missed SLA Targets.

2. Chronic Priority 1 Outages

If Customer experiences and reports three (3) separate Priority 1 Outages where the Downtime exceeds four (4) hours during each Priority 1 Outage within three (3) consecutive calendar months, then Customer may terminate the Affected Service without charge or liability by providing at least thirty (30) days written notice to Vivant; provided, however, that

1. Customer may only terminate the Affected Service;
2. Customer must exercise its right to terminate the Affected Service by providing written notice to Vivant within thirty (30) days after the event giving rise to Customer’s termination right;
3. Customer shall have paid Vivant all amounts due at the time of such termination for all Services provided by Vivant pursuant to the Service Agreement, and
4. the foregoing termination right provides the sole and exclusive remedy of Customer and the sole and exclusive liability of Vivant for chronic Priority 1 Outages and Customer shall not be eligible for any additional credits.

V. Network Maintenance

Maintenance Notice:

Customer understands that from time to time, Vivant will perform network maintenance for network improvements and preventive maintenance. In some cases, Vivant will need to perform urgent network maintenance, which will usually be conducted within the routine maintenance windows. Vivant will use reasonable efforts to provide advance notice of the approximate time, duration, and reason for any urgent maintenance outside of the routine maintenance windows.

Maintenance Windows:

Routine maintenance may be performed Monday – Friday 12 a.m. – 6 a.m. local time.