WAVELENGTH TERMS OF SERVICE SCHEDULE
This Wavelength Services Schedule (“Service Schedule“) is subject to, and made a part of, Independents Fiber Network’s Customer Terms for Wavelength services delivered to Customer. Independents Fiber Network owns and operates telecommunications facilities and is in the business of providing certain telecommunications wavelength services (“Wavelengths” or “Services”) described herein. Capitalized terms not defined herein will have the meaning ascribed to them in Independents Fiber Network’s Customer Term.
I. SERVICE DESCRIPTION
Section 1.1. Wavelength Services.
Section 1.2. Wavelength Services are bi-directional, point-to-point, optical transport circuits enabled by wavelength division multiplexing (WDM) equipment. The bandwidth for each ordered Wavelength will be stated in a Service Order. Wavelengths include, without limitation, the following types:
(a) Basic Wave: Linear unprotected point-to-point transport between two (2) sites over a shared optical fiber infrastructure;
(b) Custom Wave: Point-to-point transport over shared optical fiber infrastructure which may be configured as protected and/or diverse, and may include a defined path and/or latency profile;
(c) Dedicated Wave: Point-to-point or multipoint transport over dedicated optical infrastructure and dedicated Independents Fiber Network Equipment at the Customer locations. A Dedicated Wave may be configurable like Custom Wave and may accommodate variable growth options.
(d) NxWave: A Right-to-Use (RoU) of optical spectrum over a defined, common path across Independents Fiber Network’s Optical System for the transmission of multiple Dedicated Wave services. Unless specifically agreed otherwise through the Order of Service, the RoU across the defined path shall initially be equipped with a single 10Gbps Dedicated Wave. Additional Wavelengths may be activated and existing Wavelengths Upgraded over the common path at any time during the life of the RoU.
II. SERVICE REQUESTS AND DELIVERY
Section 2.1. Service Order Acceptance and FOC Date.
Within ten (10) business days of Independents Fiber Network’s acknowledgment of a submitted Service Order or within two (2) business days after Independents Fiber Network’s receipt of a Third Party Provider’s projected completion date for an Off-Net Service, Independents Fiber Network will notify Customer (in writing or electronically) of its acceptance of such Service Order (“Service Order Acceptance”). Independents Fiber Network may accept or reject any submitted Service Order in its sole discretion. Unless otherwise provided in the Agreement, Customer’s obligations specified in an accepted Service Order are non-cancellable. Independents Fiber Network will also provide a firm order commitment date (“FOC Date”), a date by which Independents Fiber Network estimates it will turnover Service for Customer’s use, unless an FOC Date is already stated in a Service Order.
Section 2.2. Changes to FOC Date.
Customer may request a change to the FOC Date after Service Order Acceptance but no later than fifteen (15) business days before the FOC Date by providing advance written notice to Independents Fiber Network, subject to the terms and conditions specified herein. Customer may submit a request to extend the FOC Date on one occasion per Service Order for a period of up to a maximum of thirty (30) days from the original FOC Date. Each delay is subject to a FOC Date change charge found in the appropriate Service Schedule, plus any additional charges for Third Party Services incurred by Independents Fiber Network in connection with the delayed FOC Date.
Section 2.3. Service Activation.
After Independents Fiber Network has determined that the Service conforms to the relevant Service Specifications, Independents Fiber Network will notify Customer that the Service is activated, meets the related Service Specifications and is available for use by Customer (“Service Activation Notice”). The “Service Activation Date” shall be the earlier of (i) the date on which Customer begins using the Service for any purpose other than testing or (ii) the date that Independents Fiber Network has sent the Service Activation Notice to Customer. Customer shall have two (2) days in which to notify Independents Fiber Network that it is rejecting the Service because the Service does not meet the Service Specifications. If Customer has notified Independents Fiber Network within such two (2} day period that the Service does not meet the Service Specifications, then Independents Fiber Network shall take such steps reasonably necessary to cause the Service to meet the Service Specifications, at which time Independents Fiber Network shall issue a new Service Activation Notice and the acceptance process above shall be repeated. Customer’s failure or delay to test the Service or failure or delay to utilize the Service on or after the Service Activation Notice date shall not prevent Independents Fiber Network from billing Customer for the Service. The billing of any recurring charges shall begin on the Service Activation Date and continue throughout the Service Term. If the Service Activation Date is delayed as a result of Customer’s failure to meet its responsibilities under the Agreement, the Service Activation Date will be deemed to occur as of the FOC Date or the date that Independents Fiber Network is ready to deliver the related Service, whichever is later.
Section 2.4. Incrementally Delivered Services.
Customer acknowledges and agrees that, unless specified in a Service Order, Independents Fiber Network may incrementally deliver individual Services, when ready, which may result in different Service Activation Dates and Terms for such incrementally delivered Services. Unless separately set forth in a Service Order, the charges for incrementally delivered Services shall be determined on a pro rata basis.
Section 2.5. Right-to-Use (RoU) Charges and Payment Terms.
Right-to-Use Service Charge shall be invoiced using one of the following general options with or without modifications as specified and agreed to through the Order-for-Service:
- 50% at the time of execution of the Order-for-Service and 50% at the time of Service Acceptance as a term prepayment non-recurring fee inclusive of construction aid fee, if any, and term prepayment of active wavelength maintenance fees; or
- 50% at the time of execution of the Order-for-Service and 50% at the time of Service Acceptance as a term prepayment non-recurring fee inclusive of any construction aid fees, but NOT including monthly active wavelength maintenance fees, which will be invoiced on a monthly recurring basis.
Section 2.6. NxWave Upgrades and Additional Wavelength Charges and Payment Terms.
Recurring, if any, and Non-Recurring charges will be quoted at the time Customer requests the activation of additional wavelengths and/or an upgrade in capacity of existing wavelengths over a common path. Independents Fiber Network will determine pricing based on the remaining life of the RoU and the method in which Customer elected to pay for the RoU and active wavelength maintenance at the time of initial service activation. In all cases pricing shall be determined based on then current market prices for optics, electronics and labor for activating and/or upgrading capacity of a wavelength as well as maintaining active wavelength service across Independents Fiber Network’s optical system.
III. EQUIPMENT, INSTALLATION AND MAINTENANCE
Section 3.1. Independents Fiber Network Equipment.
Independents Fiber Network, or its agent, may provide, install, maintain, repair, operate and control Independents Fiber Network’s Equipment (“Independents Fiber Network Equipment”). Independents Fiber Network’s Equipment shall remain the sole and exclusive property of Independents Fiber Network, and nothing contained herein shall give or convey to Customer, or any other person, any right, title or interest whatsoever in Independents Fiber Network’s Equipment, notwithstanding that it may be, or become, attached to, or embedded in, realty. Customer shall not tamper with, remove or conceal any identifying plates, tags or labels identifying Independents Fiber Network’s ownership interest in Independents Fiber Network’s Equipment. Customer shall not adjust, align, attempt to repair, relocate or remove Independents Fiber Network’s Equipment, except as expressly authorized in writing by Independents Fiber Network. Customer shall be liable for any loss of or damage to Independents Fiber Network’s Equipment caused by Customer’s negligence, intentional acts, or unauthorized maintenance and shall reimburse Independents Fiber Network for the same, within thirty (30) days after receipt by Customer of a request for reimbursement. Customer, at its sole cost and expense, shall be required to obtain rack space and power to support Independents Fiber Network Equipment for the Service for the duration of the Service Term. Unless specifically specified in a Service Order, Customer shall be responsible for all third party cross-connections to Independents Fiber Network Equipment and related costs.
Section 3.2. Access and Customer Premises Obligations.
Customer, at its sole cost and expense, shall provide Independents Fiber Network with access to all Customer locations for purposes of installation, maintenance, repair and removal of Independents Fiber Network Equipment on Customer premises. For purposes of the preceding sentence, “access” shall include, without limitation, any necessary license(s) to access the building and or property for the duration of the Service Term. However, notwithstanding Customer’s responsibility, if Independents Fiber Network is required by a third party to obtain and maintain any such license to access the building or property, Customer agrees to reimburse Independents Fiber Network for its Costs related to obtaining and maintaining such licenses during the Service Term. Independents Fiber Network shall provide reasonable notice under the circumstances to Customer prior to entering Customer’s point-of-presence to install, maintain, repair or remove any of the Independents Fiber Network Equipment. Customer will permit Independents Fiber Network to install software revisions released by the related third party equipment manufactures. Customer will provide a safe place to work and comply with all applicable laws regarding the working conditions on the Customer premises.
Section 3.3. Customer Equipment.
Customer is responsible, at its sole cost and expense, for connecting to the Point-of-Demarcation specified in the Service Order. Equipment and service beyond the Point-of-Demarcation and/or interconnection between Independents Fiber Network’s facilities and terminal equipment and the wiring at the Point-of-Demarcation shall be the responsibility of Customer (“Customer Equipment”). Customer must procure and maintain, at its sole cost and expense, Customer Equipment, which is technically compatible with the Service and the network. Independents Fiber Network shall have no obligation to install, maintain or repair any non-Independents Fiber Network Equipment, including any Customer Equipment. If, on responding to a Customer initiated service call, Independents Fiber Network reasonably determines that the cause of the service deficiency was a failure, malfunction or the inadequacy of equipment other than Independents Fiber Network’s Equipment, Customer shall compensate Independents Fiber Network for actual time and materials expended during the service call.
Section 3.4. Routine Maintenance.
Independents Fiber Network shall perform routine and preventative maintenance on the network. Planned network maintenance that does or does not potentially involve the disruption of functionality of the Service is also considered Routine Maintenance. The nature of such a Routine Maintenance activity is such that it can be pre-scheduled so as to allow notification to Customer as appropriate. The Independents Fiber Network NOC will generally conduct maintenance outside normal working hours anytime between 12:00 AM to 6:00 AM (local time) seven (7) days a week. Independents Fiber Network will provide Customer with five (5) days prior notice of Routine Maintenance that is service affecting.
Section 3.5. Emergency Maintenance or Repair.
Where prior notice is not practical in the circumstances, Independents Fiber Network reserves the right to perform required Emergency Maintenance or Repair. Whenever prior notice is given, Customer agrees to acknowledge notice of the emergency event in a reasonable period of time and in all events, Customer will take necessary steps to notify key personnel internally in order for Independents Fiber Network to correct or repair the affected area.
IV. PROTECTION OPTIONS
4.1.1. Protected Services.
Wavelength Services, which are protected, shall mean any Service that includes a protection scheme that allows traffic to be re-routed in the event of a fiber cut or equipment failure. In order for a Service to be considered “Protected”, all seven Service Order Detail items must match the table below. otherwise the Service will be deemed to be “Unprotected”.
|Service Order Details||Wavelength Services|
|Core Network Fiber Path Diversity||Yes|
|Core Network Protection**||Yes|
|Diverse Laterals > 50 feet seperations||Yes|
|Local Fiber Path Diversity***||Yes|
|Local Network Protection***||Yes|
Example: A Service is ordered with “Yes” for both Core Network Protection and Local Network Protection, but “No” is indicated for Core Network Fiber Path Diversity. If an outage occurs on the circuit, the Service shall be deemed an Unprotected Service.
* Core Network Fiber Path Diversity indicates whether or not the ordered service will have a diverse physical fiber route within the Core Network. **Core Network Protection indicates whether or not the ordered service has both a working and protection channel within the core network, which will be electronically switched in the event of a failure. ***Local Network Fiber Path Diversity indicates whether or not the ordered service will have a diverse physical fiber route within the local network(s). ****Local Network Protection indicates whether or not the ordered service has both a working and protection channel within the Local Network(s), which will be electronically switched in the event of a failure. For the avoidance of doubt, a Service over the Long Haul Network with path diversity with another Service over the Long Haul Network is not deemed to be a Protected Service for purposes of this Section.
V. SERVICE LEVEL OBJECTIVES
(as measured on a monthly basis)
(as measured on a monthly basis)
VI. SERVICE OUTAGES
Section 6.1. Service Outages.
A service outage (“Service Outage”) occurs when Customer experiences complete break(s) in transmission measured from the first ten (10) consecutive severely erred seconds (“SESs”) on the affected Service until the first ten (10) non-SESs, which is known by Independents Fiber Network. An SES is measured with a bit error ratio of greater than or equal to 1 in 1000.
Section 6.2. Excused Outages.
A Service interruption will not be deemed a Service Outage if Independents Fiber Network’s network is unavailable as a result of: (a) any act or omission of the Customer or its end users, or its representatives, contractors, agents, authorized invitees, successors or assigns; (b) the configuration, failure or malfunction of non-Independents Fiber Network equipment or systems; (c) any Service Outage caused by scheduled maintenance or planned enhancements or upgrades to Independents Fiber Network’s network; (d) Independents Fiber Network not being given access to premises; or (e) a Force Majeure Event. Each of the foregoing events shall be deemed an “Excused Outage.”
Section 6.3. Service Outage Credit.
Notwithstanding the Service Availability Objectives outlined above, in the event of a Service Outage not due to an Excused Outage, Customer shall be entitled to service outage credit per the table below (“Service Outage Credit”). For the purpose of measuring the Service Outage Credit, the duration of a Service Outage begins when Independents Fiber Network records a trouble ticket number and ends when the Service is restored (“Service Outage Duration”). Service Outage Duration is applicable to specific affected circuits and shall not be aggregated among circuits for purposes of determining Service Outage Credit. The maximum Service Outage Credit in a calendar month for any affected circuit shall not exceed 100% of that month’s MRC for the affected circuit.
|Service||Service Outage Duiration||Allowable Service Outage Credit|
|Protected Services||Less than 2 hours||5% of Allocated MRC for Affected Circuit|
|Between 2 and 4 hours||10% of Allocated MRC for Affected Circuit|
|Between 4 and 6 hours||30% of Allocated MRC for Affected Circuit|
|Between 6 and 8 hours||50% of Allocated MRC for Affected Circuit|
|More than 8 hours||100% of Allocated MRC for Affected Circuit|
|Unprotected Services||Less than 2 hours||5% of Allocated MRC for Affected Circuit|
|Between 2 and 4 hours||5% of Allocated MRC for Affected Circuit|
|Between 4 and 6 hours||15% of Allocated MRC for Affected Circuit|
|Between 6 and 8 hours||15% of Allocated MRC for Affected Circuit|
|More than 8 hours||50% of Allocated MRC for Affected Circuit|
VII. SERVICE OUTAGE CREDITS
In order to receive Service Outage Credit, Customer must (a) immediately report the Service Outage to the Independents Fiber Network NOC at (888) 618-4638 or email@example.com, and open a trouble ticket, and (b) make a written request for a credit within seven (7) days following the end of the month in which the Service Outage occurred. Upon receipt of Customer’s request, Independents Fiber Network will investigate the claim under the terms described in this Service Schedule. Credits will be granted only if Customer has afforded Independents Fiber Network reasonable access to Customer’s premises for appropriate repairs, maintenance, testing and any other work in order to remedy the cause of the Service Outage. The issuance of credits pursuant to this Section is Independents Fiber Network’s sole obligation and Customer’s sole remedy for any failure or non-performance of Wavelength Service under this Agreement. Service credits shall be deducted from the charges payable by Customer hereunder and shall be expressly indicated on the Customer invoice.
VIII. CHRONIC OUTAGES
Section 8.1. Chronic Service Outages.
For Protected On-Net Services, if Customer experiences three (3) or more Service Outages on the same circuit each lasting more than thirty (30) minutes in any thirty (30) day period, and the Service Outages are not Excused Outages, Customer may terminate the impacted Services without any further liability to Independents Fiber Network. For Unprotected On-Net Services, if Customer experiences three (3) or more Service Outages on the same circuit each lasting more than twelve (12) hours in any thirty (30) day period, and the Service Outages are not Excused Outages, Customer may terminate the impacted Services without any further liability to Independents Fiber Network. In order to exercise a right to terminate under this Section 8, Customer must notify Independents Fiber Network in writing that it is exercising its right under this Section 8 within thirty (30) days after the event giving rise to a right of termination. Customer shall be deemed to have waived its right to termination under this Section 8 if it falls to provide the requisite notice of termination within such thirty (30) day period.
IX. THIRD PARTY SERVICES
Section 9.1. Third Party Services.
If Independents Fiber Network purchases Third Party Services pursuant to a Third Party Provider’s applicable tariff, Customer is responsible for any incremental charges imposed on Independents Fiber Network based on changes to the Third Party Provider’s applicable tariff. In the event Customer impermissibly cancels a Service enabled by Third Party Services, Customer shall reimburse Independents Fiber Network for any amounts charged by a Third Party Provider related to such cancellation to the extent such amounts are unrecoverable by Independents Fiber Network.
Section 10 DEFINITIONS
The following additional definitions shall apply to Wavelength Services:
Allocated MRC means a portion of a Monthly Recurring Charge allocated by circuit on a pro-rata basis.
Core Network is a network backbone route within the same metropolitan area between an Independents Fiber Network POP or on-net ILEC Central Office and another Independents Fiber Network POP or on-net ILEC Central Office.
Costs mean any applicable cancellation, termination or other charges from Third Party Providers (as defined below), charges for make ready work, permitting and engineering fees, building access or license fees, special construction charges and/or capital equipment costs.
Local Network is defined as the network between an Independents Fiber Network POP or on-net ILEC Central Office in a market and the originating or terminating location of the Service.
Long Haul Network is an intercity route between an Independents Fiber Network POP or on-net ILEC Central Office and another Independents Fiber Network POP or on-net ILEC Central Office in a different metropolitan area.
Point of Demarcation is the network interface point specified on a Service Order where Independents Fiber Network hands off Service to Customer.
Service Specifications means both the definitions and performance specifications of a Service detailed in a Service Order.
Third Party Provider means a provider of a Third Party Service.
Third Party Service is a circuit or fiber optic infrastructure provided by a Third Party Provider that enables an Off-Net Service.
Independents Fiber Network POP refers to Independents Fiber Network’s point-of-presence at which Independents Fiber Network provides interconnectivity to its network routes and facilities.