1. Services

1. Customer agrees to purchase from EIGHTY8NETWORKS, and EIGHTY8NETWORKS agrees to provide Internet, Data, Colocation Services or Dark Fiber services (“Services”) as specified in one or more service orders duly executed in substantially the form of the Customer Service Order (“CSO”), attached hereto as Schedule 1 or in the case of Dark Fiber, on EIGHTY8NETWORKS’s Dark Fiber Service Schedule (collectively, “CSOs”). Each proposed CSO will be consecutively numbered and include a “Quote ”
2. Upon execution in accordance with the provisions of Section 1(a), any such CSO shall automatically be incorporated as part of this Agreement and shall be subject to all terms and conditions of this Agreement. To the extent that terms or conditions of a CSO (including the Additional Terms and Conditions included in the CSO) conflict with terms or conditions of this Agreement, or the Additional Terms and Conditions (defined below), the terms and conditions of the CSO shall govern unless, and only to the extent, expressly provided otherwise in this Agreement. If Customer and EIGHTY8NETWORKS execute multiple CSOs, each additional CSO will supplement rather than replace the prior CSO unless designated as an amendment to a prior CSO. Notwithstanding anything in this Agreement to the contrary, EIGHTY8NETWORKS has no obligation to execute any CSO with
3. Any modification of a CSO must be evidenced by a writing signed by both
4. Each CSO shall include a “Requested Install Date” for each product listed on the CSO. EIGHTY8NETWORKS will in good faith use reasonable efforts to complete installation of each product by the respective “Requested Install Date” but does not guarantee that installation will be completed by such “Requested Install Date.”
5. If the Customer cancels a CSO prior to commencement of installation of Service, Customer will be responsible for any and all third-party costs incurred by EIGHTY8NETWORKS, including but not limited to the costs of carrier circuits, equipment costs, construction costs, and building access EIGHTY8NETWORKS will invoice those costs to Customer within 30 days of receiving Customer’s notice of cancellation and will be due immediately upon receipt of the invoice. If a cancellation is received after the Provisioner has scheduled a turn-up date as provided in EIGHTY8NETWORKS’s Process and Installation Terms, Customer must pay the Monthly Recurring Charges for that Service multiplied by the number of months in the initial Service term.

2. Effective Date and Term

Unless otherwise terminated in accordance with this Agreement, (i) the initial term of this Agreement shall begin on the date first set forth above (“Effective Date”) and end 12 months from the Effective Date, and (ii) the term of this Agreement and CSOs for installed Services under this Agreement shall thereafter automatically renew for successive one-year periods unless either party gives written notice to the other party of non-renewal at least 60 days but not more than 90 days before the end of the applicable term.

If notice of termination of this Agreement is timely provided, but there are outstanding CSOs at the time this Agreement would terminate, this Agreement shall remain in effect solely to govern such CSOs until expiration of all CSOs (in accordance with their terms) and then shall automatically terminate.

3. General Payment Terms

All Monthly Recurring Charges (as specified on the outstanding CSOs) are due and payable in advance of the month immediately preceding the month for which the Services are to be provided and will commence in accordance with the attached Process and Installation terms. EIGHTY8NETWORKS will issue invoices for such amounts as of the first day of each month that will be due and payable on the 15^th of the month (“Due Date”).

4. Burst Usage Payment Terms

EIGHTY8NETWORKS will measure Customer’ bandwidth usage in five-minute intervals for each point of connection between Customer and EIGHTY8NETWORKS (or its up-stream provider) in two categories: incoming and outgoing. At the end of each billing cycle, all data samples in each category will be sorted from highest to lowest, and the top 5% of measurements will be discarded. The highest remaining data sample in the higher of the two categories will then constitute the bandwidth usage level for that billing cycle. Burst usage is the amount of bandwidth usage for the billing cycle exceeding Customer’s Minimum Committed Data Amount (as specified on the applicable CSO). Monthly burst usage charges shall be invoiced monthly in arrears and shall be due and payable on the Monthly Recurring Charges Due Date next following the date on which the invoice is received (“Due Date” for burst usage charges).

5. Interest; Billing Disputes

Any undisputed amounts not paid in full by the applicable Due Date pursuant to the terms of this Agreement shall bear interest from such Due Date until paid in full at the rate per annum equal to the Prime Rate plus two percent, where Prime Rate means the rate of interest published by The Wall Street Journal as the prime rate in the column entitled “Money Rates,” such rate to change automatically effective with each change in such prime rate. Invoices to Customer shall be deemed correct, and the right to the invoice will be waived unless Customer sends the dispute to billing@Eighty8networks.com within 30 days of the invoice date.

6. Service Level Agreement

EIGHTY8NETWORKS’s applicable service level agreement will be attached to the CSO.

7. Default and Termination and Disconnects

1. A “Customer Default” occurs if Customer (a) fails to make payment as required under this Agreement, and such failure remains uncorrected for seven days after the applicable Due Date; (b) fails to perform or observe any material term or obligation contained in this Agreement or under any CSO and such default remains uncured for 5 days following notice of default from EIGHTY8NETWORKS; (c) uses the Services for any unlawful purpose or in any unlawful manner, or violates Carrier’s Acceptable Use Policy, or (d) (i) suffers an involuntary petition in bankruptcy to be filed against it, (ii) files any petition in any reorganization, arrangement, compromise, readjustment, liquidation, or dissolution or similar relief for itself, or (iii) becomes unable to pay its debts generally as they become due. In the event of a Customer Default, EIGHTY8NETWORKS shall have the right (without any liability, and in its sole discretion) to (a) suspend and/or terminate any or all Services being provided to Customer and/or (b) terminate any or all outstanding CSOs and/or this Agreement. If the Customer Default materially adversely affects the carrier’s network, EIGHTY8NETWORKS may take such actions immediately and without prior notice to Customer. Otherwise, EIGHTY8NETWORKS shall provide at least two business days’ notice, in writing or by electronic mail, of EIGHTY8NETWORKS’s intention to suspend and/or terminate service. If this Agreement is terminated due to a Customer Default, the Customer will continue to be liable for the Monthly Recurring Charges as provided in the CSO for the balance of the then-current term. EIGHTY8NETWORKS shall at all times be entitled to all rights available to it at law and in equity for Customer’s default, and Customer agrees to pay EIGHTY8NETWORKS’s reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of EIGHTY8NETWORKS’s rights in the event of a Customer Default. If EIGHTY8NETWORKS terminates a Service pursuant to this Section 7, EIGHTY8NETWORKS may, in its sole discretion, agree to resume the discontinued Service after it is reasonably satisfied Customer has cured the breach(es), which gave rise to EIGHTY8NETWORKS’s right to suspend the Service. EIGHTY8NETWORKS may charge a reinstatement fee to resume the discontinued Service.

2. Customer Disconnect requests will not be effective unless emailed to disconnects@Eighty8networks.com and must include the EIGHTY8NETWORKS Circuit ID#, Customer Account Number, and reason for An automated email response will be provided to the customer once the disconnect email request has been sent. Disconnect requests will take 60 days to process from date of emailed notification and may be subject to early termination fees as provided in the CSO unless the initial term has expired and the Customer has provided timely notice of non- renewal in accordance with Section 2.

8. Taxes and Fees

All charges for Service are exclusive of Applicable Taxes (as defined below). Except for taxes based on EIGHTY8NETWORKS’s net income, Customer is responsible for all applicable taxes, fees, surcharges, or other charges or impositions that arise in any jurisdiction, including, without limitation, value-added, consumption, sales, use, gross receipts, excise, access, regulatory, bypass, franchise or other taxes, fees, duties, charges or surcharges, however, designated, imposed on, incident to, or based upon the provision, sale or use of the Service or equipment (collectively “Applicable Taxes”). Customer shall pay such Applicable Taxes and indemnify EIGHTY8NETWORKS from any liability or expense incurred by EIGHTY8NETWORKS in connection with such Applicable Taxes. If Customer claims an exemption from an Applicable Tax for a particular Service, Customer must provide EIGHTY8NETWORKS with a valid exemption certificate in a form reasonably   acceptable to EIGHTY8NETWORKS. EIGHTY8NETWORKS will give effect to any such exemption certificate on a prospective basis from and after EIGHTY8NETWORKS’s receipt of such exemption certificate. If Customer fails to provide EIGHTY8NETWORKS with accurate information regarding the jurisdiction of traffic carried over any Service designated as intrastate, Customer agrees that it may be liable to EIGHTY8NETWORKS for any surcharges or other fees attributable to such failure, notwithstanding any back-billing restrictions that may otherwise apply.

9. Regulatory and Legal Changes

In the event of any change in applicable law, regulation, decision, rule, or order that materially increases the costs or other terms of delivery of Service, EIGHTY8NETWORKS and Customer will negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the parties are unable to reach agreement respecting new rates within 30 days after EIGHTY8NETWORKS’s delivery of written notice requesting renegotiation, then (a) EIGHTY8NETWORKS may pass such increased costs through to Customer, and (b) if EIGHTY8NETWORKS elects to pass such increased costs through

to Customer, Customer may terminate the affected Service without termination liability by delivering written notice of termination no later than 30 days after the effective date of the rate increase.

10. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, EIGHTY8NETWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF ERROR-FREE, UNINTERRUPTED, OR COMPLETELY SECURE USE OR NON-INFRINGEMENT. ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED AND PERFORMED ON AN “AS-IS, “ “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF SERVICES IS SOLELY AT ITS OWN RISK.

11. LIMITATION OF LIABILITIES

IN NO EVENT SHALL EITHER PARTY OR ITS PRINCIPALS, SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AFFILIATES, CONTRACTORS, SUBCONTRACTORS, OTHER AGENTS, SUBSIDIARIES, OR PARENT ORGANIZATIONS (THE PARTY’S “GROUP”) BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER SIMILAR DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

EIGHTY8NETWORKS shall not be responsible for any liabilities caused by (i) any acts of negligence by Customer, any member of Customer’s Group or any other third party; (ii) any act by Customer or any member of Customer’s Group in violation of Customer’s obligations under this Agreement; (iii) any use of the Services by Customer or any member of Customer’s Group for which it is not designed or intended; (iv) any modification, addition or alteration to the Services; and (v) any casualty event out of the control of EIGHTY8NETWORKS. In no event shall EIGHTY8NETWORKS be liable to Customer, any member of Customer’s Group, or any other third party for any damages for any cause whatsoever, and regardless of form of action, for any amount which when taken in aggregate with all amounts owed or paid by EIGHTY8NETWORKS to Customer or a member of Customer’s Group exceeds the highest aggregate amount paid by Customer to EIGHTY8NETWORKS pursuant to this Agreement over the course of the most recently completed calendar year or, if the Agreement has been in place for less than a full calendar year, over the term of the Agreement.

12. Compliance with Law

Use of the Services by Customer or any person accessing Services provided Customer must be in accordance, and comply, with all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents, and authorizations necessary or advisable to conduct its business and initiate or conduct any transmissions over any facilities covered by this Agreement.

13. Indemnity

1. Customer and EIGHTY8NETWORKS shall defend, indemnify and hold harmless the other and its respective Group from and against any and all claims for damage to tangible property or bodily injury, including claims for wrongful death, to the extent that such claim arises out of the gross negligence or willful misconduct of the indemnifying party and its respective
2. Customer will defend, indemnify and hold harmless EIGHTY8NETWORKS and its Group from and against any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or un-liquidated (i) of any of Customer’s end-users or customers of any other third party in connection with their use of the Service, or (ii) arising from or related to Customer’s failure to obtain any required approval, consent or authorization or Customer’s violation of any applicable law, rule or regulation or Customer’s use of Service in contravention of this Agreement. Indemnification under this Section will include reasonable attorneys’ fees and all reasonable costs and expenses incurred that arise out of, or result from or are based upon any complaint, claim, action, proceeding or suit subject to such indemnification.

14.  Resale of Services

Customer may resell lit Services and may sublease or sublicense to its end users Dark Fiber leased under a CSO for a term not longer than the term of Customer’s Dark Fiber lease from EIGHTY8NETWORKS, so long as Customer does not purport to sell or grant indefeasible or other similar rights of use in all or any part of the Dark Fiber granting greater rights than those granted by EIGHTY8NETWORKS to Customer in such Dark Fiber, and for lit Services and Dark Fiber, the service agreement with the end-user permits EIGHTY8NETWORKS to assume the rights and obligations of the provider in the case of a provider default.

15. Force Majeure

EIGHTY8NETWORKS may adjust or suspend its performance to the extent performance is beyond EIGHTY8NETWORKS’s reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut, governmental action, technological impracticability, national emergencies, war, riot, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts.

16. Confidentiality

1. Each party hereby acknowledges that, in connection with this Agreement and performance under this Agreement, it may have access to confidential and proprietary material of the other party, its other service providers, carriers, contractors, subcontractors, partners, consultants, employees, or other agents. Confidential Information includes but is not limited to all information pertaining to the other party’s business, operations, customers, and activities, as well as the terms and conditions of this Agreement and all CSOs; provided, however, that in no case shall Confidential Information include (i) any information that is or becomes a part of the public domain without breach of a duty of confidentiality; (ii) any information that was properly in its possession prior to receipt from the other party and is not otherwise subject to a duty of confidentiality; and (iii) any information that a party is under a legal or regulatory duty to disclose to appropriate authorities (in which case, the party shall provide written notice to the other party regarding such duty to disclose as soon as reasonably possible).
2. Each party shall (i) use Confidential Information only for the purpose of performing obligations under this Agreement; (ii) disclose Confidential Information only to its employees and agents who have a need to know the Confidential Information in order to assist in performance under this Agreement and ensure that all such employees and agents understand and adhere to all covenants of this Section 16; (iii) take all reasonable steps necessary to hold and maintain the Confidential Information in strict confidence and, except as otherwise provided, in this Section 16, not disclose any Confidential Information to a third party without prior written consent by the other party; (iv) not use any Confidential Information in a way which would be detrimental to the other party; and (v) return all Confidential Information to the disclosing party upon termination of this
3. Each party recognizes and agrees that the ascertainment of damages in the event of a breach or threatened breach of any covenant in this Section 15 would be difficult, if not impossible, and in the event of the other party’s breach or threatened breach of such covenants, a party will suffer irreparable injury that cannot adequately be compensated by monetary Each party, therefore, agrees that the other party, in addition to and without limiting any other remedy or right it may have, shall have the immediate right to obtain a preliminary or final injunction against the disclosing party issued by a court of competent jurisdiction enjoining any such alleged breach or violation without posting any bond that might otherwise be required, and each party agrees that it shall not plead the adequacy of any relief at law (including monetary damages) as a defense to the other party’s petition, claim or motion for any injunctive relief.

17. Equipment

If EIGHTY8NETWORKS provides equipment in connection with the provision of lit Services, or if EIGHTY8NETWORKS provides Dark Fiber:

1. Customer acknowledges that the equipment and fiber optic cable is owned by EIGHTY8NETWORKS and will at all times remain the property of EIGHTY8NETWORKS, even if installed on Customer’s real property. Customer shall not pledge, lease (except as permitted by Section 14), sell, transfer, mortgage, otherwise encumber, give away, remove, relocate, alter or tamper with the equipment (or any notice of ownership thereon) or Dark Fiber or attach any electrical or other devices to the equipment. EIGHTY8NETWORKS reserves the right to make such filings or take such other actions as EIGHTY8NETWORKS, in its sole discretion, deems necessary or appropriate to evidence its ownership rights in the equipment. Customer agrees to execute all documents required to make such filings or accomplish such
2. EIGHTY8NETWORKS reserves the right to, at any time, alter the equipment and the features and functionality of the EIGHTY8NETWORKS will use reasonable efforts to schedule maintenance and replacement of equipment to minimize interference with, or interruption of, Services, but shall have no liability for interruptions in Services arising out of, or related to, maintenance or replacements. EIGHTY8NETWORKS may charge Customer for any repairs or replacement required due to damage or misuse of the equipment (normal wear and tear excepted). In addition, if the equipment is defective, damaged, destroyed, tampered with, stolen, or otherwise removed, Customer must notify EIGHTY8NETWORKS immediately and may be held liable for repair or replacement if such notification is not immediately provided.
3. Upon termination of Services, Customer will contact EIGHTY8NETWORKS to schedule return of the All equipment must be returned within 30 business days of circuit termination, in undamaged and full working order (normal wear and tear excepted). If the provided equipment is not returned by Customer or is not returned in such condition as originally provided, Customer shall pay EIGHTY8NETWORKS the cost of repair or replacement, at fair market value, as determined by EIGHTY8NETWORKS.

18. Regulatory Matters

Customer acknowledges that the Services will be subject to the laws and regulations of multiple jurisdictions. EIGHTY8NETWORKS may cancel or suspend any Service, without liability, immediately with notice to Customer if provision of that Service, or any portion thereof, is determined to be a violation of any applicable law, rule, or regulation.

19. Relationship of Parties

EIGHTY8NETWORKS and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between EIGHTY8NETWORKS and Customer. Neither EIGHTY8NETWORKS nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Neither EIGHTY8NETWORKS nor Customer grants the other the right to use its trademarks, service marks, trade names, logos, copyrights or other intellectual property rights or other designations in any promotion, publication or press release without the prior written consent of the other party in each case.

20.  Choice of Law/Venue

Any disputes concerning this Agreement shall be governed by and determined under New Jersey, without regard to conflicts of law principles. Any litigation must be brought in the United States District court for the District of New Jersey or the New Jersey Superior Court for Bergen County, New Jersey, as appropriate. Each party consents to personal and subject matter jurisdiction and venue in such courts and waives the right to change venue.

21. Miscellaneous

(a) Customer shall not assign or otherwise transfer its rights or obligations under this Agreement or any CSO without the prior written consent of EIGHTY8NETWORKS which consent shall not be unreasonably withheld; (b) To the extent otherwise permissible, EIGHTY8NETWORKS shall provide Customer the option of assignment of this Agreement directly to the upstream carrier in the event that EIGHTY8NETWORKS is unable to continue managing the Services; (c) This Agreement will be binding upon and inure to the benefit of all successors and permitted assigns of the parties, who will be bound by all of the obligations of their predecessors or assignors; (d) EIGHTY8NETWORKS will retain title to all parts and materials used or provided by EIGHTY8NETWORKS or third parties acting on its behalf in the performance and/or furnishing of the Services; (e) No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this Agreement; (f) The provisions of this Agreement are for the benefit only of the parties hereto, and no third party may seek to enforce or benefit from these provisions; (g) If any term or provision of this Agreement shall be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then: (1) this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent; and (2) the remainder of this Agreement shall be valid and enforceable; (h) The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision; (i) Sections 5, 7, 8, 10, 11, 13, 16, 17, 18, 19 and 20 shall survive any termination of this Agreement; (j) This Agreement, attached schedules, annexes, riders, and all CSOs entered into under this Agreement constitute the complete and exclusive statement of the understanding between the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to the content of this Agreement and the provision of the Services; (k) ) Except where otherwise expressly stated in this Agreement, and subject to the

limitations set forth in Section 10, the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a party would otherwise have; (l) Captions and paragraph headings are used merely for reference purposes and do not affect and shall not be interpretative of the context in any manner; (m) This Agreement may be signed in counterparts, each of which when executed, shall be deemed an original, and all such counterparts shall constitute one and the same instrument.

23. Intrastate Circuits

Customer acknowledges and agrees that no intrastate circuit provided hereunder may (a) be extended by Customer to an out of state location or (b) used to transmit or otherwise carry more than 10% Interstate Traffic. “Interstate Traffic” includes (i) Internet traffic,

(ii) interstate switched access, and/or (iii) data or switched voice traffic that originates and terminates in different states.

24. Notices

The parties must submit any notice, demand, consent or other communication required or provided under this Agreement in writing and addressed or delivered to the attention of the representatives specified below its signature, except that in the case of EIGHTY8NETWORKS, the notice must specify “Attention Legal.” Notices will be deemed received: (i) upon delivery when personally delivered; (ii) at the time indicated on the return receipt, when sent via registered or certified mail; (iii) on the date that the party or its representative signs for the package when sent via overnight courier.

25.  Remote Hands Services and Testing

EIGHTY8NETWORKS can provide additional installation and technical services, herein referred to as “Remote Hands,” to Customer. Remote Hands services include but are not limited to onsite installation and technical support as well as additional provisioning and engineering services as needed. EIGHTY8NETWORKS will inform Customer if Remote Hands services are required, and Customer must agree in writing or email to the charges.   EIGHTY8NETWORKS will invoice the Customer at a rate $200 per hour for Remote Hands services.

EIGHTY8NETWORKS will provide standard RFC 2544 testing on all On Net to On Net Metro Ethernet circuits. Standard testing includes throughput, latency, jitter, back-to-back, and frame loss testing. Any additional testing that Customer requires will be charged at $200 per hour. Additional testing must be scheduled with the EIGHTY8NETWORKS engineering or provisioning group and requires a minimum of 48 hours’ notice.