Network Availability and Uptime. Provider ("Provider") guarantees one hundred (100%) percent Backbone Network Uptime with at least ninety-nine (99%) percent sustained Packet Throughput (PT). To determine compliance, measurements are taken on a continual basis on the Provider U.S. Domestic Backbone Network between various combinations of any two of our Points of Presence (POPs).

A. Network availability refers to the ability of a Customer to access the Provider Backbone Network.

B. Provider measures latency on the Provider Backbone Network. These measurements are taken as round trip times between core routers within the Provider POP facilities in the continental United States. Provider guarantees an average round trip latency of not more than one hundred and twenty (120ms) milliseconds. If this standard is not met, Provider will credit the Customer as detailed in § 6.

C. Network Unavailability is defined as a packet loss in excess of fifty (50%) percent for fifteen (15) consecutive minutes or more or one that exceeds one (1%) percent for two (2) or more consecutive hours on the Provider Backbone Network. Periodically, Provider will upgrade or find the need to repair or replace vital network equipment which interruptions are foreseeable events common to all First Tier network Providers. Neither these maintenance events, necessary for providing a consistently high level of service, nor Customer caused outages or disruptions beyond Provider's control are considered "Network Unavailability" as covered by this SLA.

D. Customers must report Network Unavailability of longer than fifteen (15) consecutive minutes or the aforementioned packet loss to Provider Customer Support Center within forty-eight (48) hours of the event. If the event reported by the Customer is confirmed by Provider Customer Service, the Customer will receive a pro-rated service credit as detailed in § 6. However, the total of any credits granted for any twenty four (24) hour period may not exceed one (1) full day's pro-rated fee.

E. Network Unavailability for Point to Point Leased Line Dedicated Access Customers caused by a failure due to the Local Exchange Carrier (LEC) is covered by this SLA for any service with a Provider ordered local loop circuit. Provider will use industry standard efforts to remedy any circuit failures when working with the LEC. The pro-rata discount for this type of outage is limited to Internet Port access fees only and will be applied to Customer's invoice as described in § 6.

F. Network Unavailability for Frame Relay and Digital Subscriber Link Service caused by a failure due the to LEC Frame Relay Network or LEC tail circuits, is not covered by this SLA and Provider will not be liable for same.

2. Hardware and Software Monitoring and Uptime. Equipment not owned and operated by Provider is not directly monitored. However, indirect monitoring is provided in the form of a standard Ping Test performed every three hundred (300) seconds to one (1) IP address per Customer service account. In the event that two (2) consecutive Ping Tests fail, Provider will notify Customer in accordance with the standard notification policy detailed in § 3. However, Provider will not take any corrective action unless a Maintenance Agreement between the parties is in effect.

3. Notification of Outages and Service Interruption Events. Fifteen (15) minutes after an outage is officially recorded which occurs when the second Ping Test fails, Provider will contact Customer's designated representative by e-mail, phone, or pager. Customers reporting service interruption events or outages of any kind may use the "Single Point of Contact" local support telephone number for access to the twenty-four (24) hour Support Group.

4. Access to Statistics. Customer will have access to a public web page detailing Provider Backbone Network availability and latency statistics. Customers may enter separate agreements for additional statistics accessible through private web pages with Customer specific usage statistics as detailed in that agreement.

5. Installation Interval Guarantee. If Provider is unable to meet the standard installation interval for any Service, and Customer has been billed for the full installation fee (i.e., not discounted), Provider will credit Customer's account with fifty (50%) percent thereof, excluding any local loop installation charges. Since Customer may choose to purchase one of several levels of expedited installation Service, if Provider fails to meet the purchased installation deadline, Provider will discount the expedite fee to the cost associated with whichever interval it meets. For example, if Customer orders a "Rush" installation package and Provider meets the "Standard" interval, Provider will refund the difference between the "Rush" and "Standard" install fee. In order to qualify for this installation guarantee, Customer's account must be in good standing. All these entitlements are subject to Provider's performance not being precluded by Customer created or force majeure events.

6. Warranties and Disclaimers by Provider. Service Level Warranty. In the event Customer experiences any of the following and Provider determines in its reasonable judgment that such inability was caused by Provider's failure to provide Internet Data Center Services for reasons within Provider's reasonable control and not as a result of any action or inaction of Customer or any third parties (including Customer equipment and/or third party equipment), Provider will, upon Customer's request in accordance with §6C., credit Customer's account as described below:

A. Inability to Access the Internet (Downtime). If Customer is unable to transmit and receive information from Provider's Internet Data Centers (i.e., Provider's LAN and WAN) to other portions of the Internet because Provider failed to provide Internet Data Center Services for more than fifteen (15) consecutive minutes, Provider will credit Customer's account the pro-rata Provider connectivity charges (i.e., all bandwidth related charges) for one (1) day of Service, up to an aggregate maximum credit of connectivity charges for seven (7) days of Service in any one calendar (1) month. Provider's scheduled maintenance of the Internet Data Centers and Internet Data Center Services, as described in the Policies and Procedures, shall not be deemed to be a failure of Provider to provide Internet Data Center Services. Pro-rata daily credits are limited to one full day's credit per twenty-four (24) hour Service period.

B. Packet Loss and Latency. While Provider does not proactively monitor the packet loss or transmission latency of specific Customers, Provider does monitor the packet loss and transmission latency within its LAN and WAN. If Provider discovers (either from its own efforts or after being notified by Customer) that Customer is experiencing packet loss in excess of the level set by the SLA purchased by Customer ("Excess Packet Loss") or transmission latency in excess of one hundred and twenty (120ms) milliseconds round trip time (based on Provider's measurements) between any two POPs within Provider's U.S. network (collectively, "Excess Latency", and with Excess Packet Loss "Excess Packet Loss/Latency"), and Customer notifies Provider (or confirms that Provider has notified Customer), Provider will take all actions necessary to determine the source of the Excess Packet Loss/Latency.

(i) Remedy of Excess Packet Loss/Latency. If the Excess Packet Loss/Latency remedy is within the sole control of Provider, Provider will remedy the Excess Packet Loss/Latency within two (2) hours of determining the source of the Excess Packet Loss/Latency. If the Excess Packet Loss/Latency is caused from outside of the Provider LAN or WAN, Provider will notify Customer and will use industry standard efforts to notify the party(ies) responsible for the source and cooperate with it/them to resolve the problem as soon as possible.

(ii) Failure to Determine Source and/or Resolve Problem. If Provider is unable to determine the source of and remedy the Excess Packet Loss/Latency within the time periods described above (where Provider was solely in control of the source), Provider will credit Customer's account the pro-rata Provider connectivity charges for one (1) day of Service for every two (2) hours after the time periods described above that it takes Provider to resolve the problem, up to an aggregate maximum credit of connectivity charges for seven (7) days of Service in any one (1) month.

C. NOTE: Customer Must Request Credit. To receive any applicable credits, Customer must notify Provider Customer Service within two (2) business days from the time Customer becomes eligible to receive a creditor forfeit its right to receive a credit. Provider will contact Customer to review the status of the credit request and to determine the applicable credit, if any, due Customer.

D. Remedies Not Cumulative - Maximum Credit. In the event that Customer is entitled to multiple credits arising from the same event, such credits shall not be cumulative. Customer shall be entitled to receive only the maximum single credit available for such event. In no event will Provider be required to credit Customer in any one (1) calendar month Provider connectivity charges in excess of seven (7) days of Service. A credit shall be applied only to the month in which the incident took place. Customer shall not be eligible to receive any credits for periods during which Customer received any Service free of charge.

E. Termination Option for Chronic Problems. If, in any single calendar month, Customer would be able to receive credits totaling fifteen (15) or more days (but for the limitation in subparagraph D above) resulting from three (3) or more events during such calendar month or, if any single event entitling Customer to credits under subparagraph A exists for a period of eight (8) consecutive hours, then, Customer may terminate the applicable Service for cause and without termination fee by notifying Provider within five (5) days following the end of such calendar month. Termination will be effective thirty (30) days after receipt of such notice by Provider.