Terms and Conditions of Service

These terms and conditions (“Terms”) apply to all retail business services offered by OpenFiber Kentucky Company, LLC, a Delaware limited liability company, doing business as Accelecom (“Accelecom”). The placement of a service order (“Service Order”), payment of an invoice, or receipt or use of services from Accelecom constitutes acceptance of and agreement to be bound by these Terms and the terms of any Service Order and related order confirmation (“Order Confirmation”). These Terms, the Service Order, and the Order Confirmation are referred to as the “Agreement.

IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT (INCLUDING THESE TERMS), YOU MUST NOTIFY ACCELECOM AT OPENFIBER@OPENFIBERKY.COM or 502-586-7600 PRIOR TO OR WITHIN TWENTY-FOUR (24) HOURS OF THE DATE OF AN ORDERCONFIRMATION.

As used in these Terms “Customer” means the customer specified in a Service Order and Order Confirmation. Customer and Accelecom are referred to herein individually as “Party” and together as the “Parties.” “End User” means an end user of Customer whose traffic Customer will carry via services provided by Accelecom.

1. ORDERING, PROVISION, AND USE OF SERVICES

1.1 Service Orders. Customer may place orders for transport services (“Services”) by executing and delivering a Service Order to Accelecom via SalesForce.com. If accepted, Accelecom will issue to Customer an Order Confirmation. Each Service Order will be effective and binding on the Parties only upon issuance of an Order Confirmation, and will become part of the Agreement only to the extent that the Service Order specifies: (a) Customer’s identity, (b) type(s) of Services, (c) installation/service address(es) (“Site”), (d) quantity(ies) of Services between originating and terminating location(s) (“Circuit(s)”), (e) monthly recurring charges (“Monthly Recurring Charges”), (f) any one-time charges (“Non-Recurring Charges”), and (g) minimum period of time for which Customer commits to purchase the Service(s) (the “Service Order Term”).

Any terms and conditions that are typed, printed, or otherwise included in any Service Order that conflict or are inconsistent with these Terms or an Order Confirmation will have no force or effect and are specifically rejected by Accelecom.

1.2 Use of Services. Customer’s use of the Services (including all content transmitted via the Services) shall comply with all applicable laws and regulations and the Agreement. Customer shall not use, or permit the use of any Services, in a manner that will impair Accelecom’s network or facilities or the ability of other Accelecom customers to use Accelecom’s services. As between the Parties, Customer is solely responsible for (a) all use (whether or not authorized) of the Services, which use shall be deemed Customer’s use for purposes of the Agreement; and (b) all content that is stored or transmitted via any Services.

2. PAYMENT; TAXES

2.1 Charges. Customer agrees to pay any charges for the Services within thirty (30) days after the date of the invoice (the “Due Date”) in immediately available funds payable to Accelecom. Any dispute of a charge must be made within sixty (60) days of the date of invoice.

2.2 Commencement of Billing. Customer’s obligation to pay the Monthly Recurring Charges shall begin on the date on which a Circuit is delivered to a Customer and ready for use (the “Service Commencement Date”). Notwithstanding the foregoing, in the event of a delay in activation of Services due to delays or failures by Customer, Accelecom shall be permitted to commence billing on the installation date set forth in the Order Confirmation for the applicable Services (the “Order Confirmation Date”).

2.3 Interest/Collection Costs. Unpaid amounts are subject to interest, calculated at the lesser of 1.5% monthly or the maximum rate allowable by law. Customer shall also be responsible for all costs of collection (including reasonable attorneys’ fees) to collect undisputed overdue amounts.

2.4 Taxes. Customer shall pay any applicable federal, state, or local sales, use, or excise taxes, fees, or surcharges in connection with Service(s) furnished to Customer, including state or federal Universal Service Fund contributions (excluding any taxes based upon Accelecom’s income). Customer shall pay all gross receipts taxes which may be passed through by Accelecom under the rules of any federal, state, or local governmental authority. Accelecom shall have the right to recover from Customer the amount of any fees, surcharges, or taxes imposed directly on Accelecom or the Services provided under the Agreement in accordance with all applicable laws, in the form of a surcharge included on Accelecom’s invoice.

Customer shall provide Accelecom with information, including but not limited to duly executed exemption certificates with respect to any exemption from sales, use, or other tax or fee exemption claimed by Customer and shall immediately notify Accelecom of any change in Customer’s tax status. To the extent any such exemption documentation is held invalid by the tax or governmental authority for any reason, Customer agrees to reimburse Accelecom for any tax liability including without limitation related interest and penalties arising from such invalid documentation.

3. TERM AND TERMINATION

3.1 Service Order Term. The Service Order Term will be specified in the applicable Service Order, and will commence on the Service Commencement Date. Upon expiration of the Service Order Term with respect to a particular Service Order, the Service Order Term shall continue on a month-to-month basis until terminated by a Party upon thirty (30) days’ written notice to the other Party.

3.2 Early Termination.

(a) If Customer terminates a Service Order at any time after issuance of the Order Confirmation by Accelecom and prior to the applicable Order Confirmation Date, Accelecom may invoice Customer for, and Customer shall pay Accelecom by the applicable Due Date, as liquidated damages and not as a penalty: (1) the amount of any third party-imposed termination liability incurred as a result of such termination, as well as any construction or installation related charges and expenses incurred by Accelecom prior to such termination that are attributed to the affected Services, and (2) a termination charge of one (1) month’s Monthly Recurring Charges if cancelled more than thirty (30) days prior to the Order Confirmation Date, two (2) months’ Monthly Recurring Charges if cancelled between eleven (11) and thirty (30) days prior to the Order Confirmation Date, and three (3) months’ Monthly Recurring Charges if cancelled ten (10) days or fewer prior to the Order Confirmation Date. There will be no such early termination charge if a Circuit is cancelled prior to the issuance of an Order Confirmation by Accelecom.

(b) If Customer terminates a Service Order on or after the Service Commencement Date but before the end of the applicable Service Order Term, Customer shall pay to Accelecom on demand, as liquidated damages and not as a penalty, (i) an early termination charge equal to the sum of: (1) the full amount of all undisputed past due charges and interest thereon, if any, and (2) one hundred percent (100%) of all remaining Monthly Recurring Charges for the applicable Service Order Term; and (ii) any construction or installation related charges and expenses incurred by Accelecom with respect to such Circuit to the extent that the early termination charge in (i) above does not fully reimburse Accelecom for such costs.

3.3 Termination Effects. Immediately upon termination of any Service(s) or the Agreement, Customer shall  cease all use of the Services and, upon request of Accelecom, return any Accelecom Equipment (as defined  below). Accelecom may leave in place all or certain portions of any Accelecom Equipment in its sole discretion.

4. INSURANCE

Customer shall carry such types and amounts of insurance as are reasonably necessary to meet Customer’s  obligations under the Agreement, including without limitation its indemnification obligations set forth in Section 8. Upon request of Accelecom, Customer will furnish to Accelecom certificates of such insurance.

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

5.1 Customer Representations and Warranties. Customer represents and warrants that it is in good standing  in the state of its organization, that it is qualified to do business in the states where the Services will be delivered,  and that the execution and delivery of the Agreement has been duly authorized in compliance with Customer’s organizational documents and procedures. Customer further represents and warrants that it is not a reseller of any  telecommunication services provided under the Agreement as described in the Telecommunications Act of 1996,  as amended, or applicable state law.  

5.2 DISCLAIMER. THE SERVICES AND RELATED EQUIPMENT AND/OR OTHER MATERIALS  USED IN CONNECTION WITH THE SERVICES, IF ANY, ARE PROVIDED WITHOUT WARRANTIES OF  ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF  TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  ACCELECOM DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET  CUSTOMER’S REQUIREMENTS, WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, OR  WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, WITHOUT DEGRADATION OF VOICE QUALITY  OR LOSS OF CONTENT, DATA, OR INFORMATION, OR THAT ANY MINIMUM TRANSMISSION  SPEED IS GUARANTEED AT ANY TIME. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES  THAT ANY DATA, MATERIAL, OR TRAFFIC OF ANY KIND WHATSOEVER CARRIED, UPLOADED,  DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT  CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY  RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR AN END USER’S COMPUTER SYSTEM OR  EQUIPMENT (INCLUDING NETWORK EQUIPMENT) OR LOSS OF SUCH DATA, MATERIAL OR  TRAFFIC DURING, OR THAT RESULTS FROM, CUSTOMER’S OR ITS END USER’S USE OF THE  SERVICES, INCLUDING, BUT NOT LIMITED TO CUSTOMER’S OR END USER’S SENDING OR  RECEIVING, OR UPLOADING OR DOWNLOADING, OR ATTEMPTS TO DO SAME, OF SUCH DATA,  MATERIAL, OR TRAFFIC. ANY SERVICES PROVIDED BY CUSTOMER TO ANY THIRD PARTIES  (INCLUDING ANY CUSTOMER OF CUSTOMER OR END USER) ARE THE SOLE RESPONSIBILITY OF  CUSTOMER, AND IN NO CIRCUMSTANCES SHALL SUCH SERVICES BE DEEMED TO BE SERVICES  PROVIDED BY ACCELECOM TO SUCH PARTIES.  

6. DEFAULT

6.1. Definition. A Party shall be deemed in default of the Agreement (a “Default”) upon the occurrence of  any one or more of the following events: 

(a) If a Party liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors,  invokes any provision of law for general relief from its creditors, or initiates any proceeding seeking  general protection from its creditors;

(b) Except with respect to payment defaults, a Party fails to perform its material obligations under the  Agreement and such nonperformance is not remedied within thirty (30) days after receipt of written  notice thereof, provided that if the breach is of such a nature that it cannot be cured within thirty  (30) days, then such Party shall not be in Default so long as it commences to cure within such period  of time and thereafter diligently and continuously pursues such cure to completion; or  

(c) A Party fails to make any payment under the Agreement when due.

6.2 Consequences. Upon the occurrence of a Default and subject to any applicable notice and cure periods,  the non-defaulting Party under the Agreement may, without liability to the other Party, terminate the applicable  Services affected by such uncured Default, or suspend performance with respect to the applicable Services under  the affected Service Orders. The foregoing shall be in addition to any other rights and remedies that Accelecom may have under the Agreement or at law or equity relating to Customer’s breach.

7. OWNERSHIP OF RIGHTS; CONFIDENTIALITY

All materials provided by Accelecom in connection with the Agreement and any proprietary or confidential know how, methodologies, information, software, or processes used, developed, or disclosed by Accelecom in  connection with the Agreement (“Accelecom Information”) shall remain the sole and exclusive property of  Accelecom. Customer shall not cause or permit any person to disassemble, decompile, reverse engineer,  reproduce, modify, or distribute the Accelecom Information or Accelecom Equipment (as defined below), in  whole or in part, or use them for the benefit of any third party. Customer agrees to maintain in confidence, and  not to disclose to third parties or use, except for such use as is expressly permitted in the Agreement, the  Accelecom Information, including, but not limited to, the contents of any Service Orders or Order Confirmations.

8. INDEMNIFICATION

Customer agrees to indemnify, defend, and hold harmless Accelecom and its directors, officers, employees,  affiliates, agents, and subcontractors from any and all claims, liabilities, lawsuits, damages, losses, judgments,  costs, fees and expenses, including reasonable attorneys’ fees, arising out of or relating to (a) any breach of the  Agreement by Customer; (b) a claim by an End User relating to any Services; or (c) use of the Services by  Customer or an End User. 

9. LIMITATIONS OF LIABILITY

ACCELECOM SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL,  SPECIAL, INCIDENTAL, RELIANCE, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS, OR HARM TO BUSINESS) ARISING OUT OF  OR RELATING TO THE SERVICES OR NONPERFORMANCE UNDER THE AGREEMENT, EVEN IF  ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ACCELECOM’S  AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, OR SUPPLIERS HAVE ANY LIABILITY TO  CUSTOMER OR END USERS UNDER THE AGREEMENT. 

THE AGGREGATE LIABILITY OF ACCELECOM FOR ANY REASON AND ALL CAUSES OF ACTION  ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES  PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER FOR THE  APPLICABLE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. 

NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, ACCELECOM’S SOLE LIABILITY, AND  CUSTOMER’S SOLE REMEDY, WITH RESPECT TO ANY FAILURE OF THE SERVICES SHALL BE AS SET FORTH IN THE SERVICE LEVEL AGREEMENT (“SLAs”) ATTACHED HERETO AND  INCORPORATED HEREIN AS EXHIBIT A

10. REGULATORY

10.1 Use of Services. Customer shall not resell the Services provided under the Agreement without the written  consent of Accelecom and, if required by Accelecom, execution of a separate agreement. 

10.2 Effect of Government Actions. If any change in law or regulation or a decision by a regulatory authority  or court of competent jurisdiction has the effect of canceling, changing, superseding, or frustrating any material  term or provision of the Agreement or otherwise materially increasing Accelecom’s costs or changing the  economic structure of the transactions contemplated under the Agreement, then Customer acknowledges and  agrees that Accelecom may pass through to Customer any increased costs arising out of such governmental action;  provided that Accelecom shall not pass through such costs on a discriminatory basis. In addition, if Accelecom determines that offering or providing of the Services, or any part thereof, has become impracticable for legal or  regulatory reasons then Accelecom may terminate any affected Service Orders immediately upon written notice  without liability. 

11. FORCE MAJEURE

Accelecom shall have no liability for any delay or failure of performance if it is caused by, in whole or in part, (a)  causes beyond Accelecom’s reasonable control, including, but not limited to, acts of god, fire, lightning, storm,  flood, or other natural disaster, or failures of a third-party service provider; (b) laws, orders, rules, regulations,  directions, or actions of, or delays, or issues arising out of the issuance of permits or other authorizations or  approvals by, governmental authorities having jurisdiction over the Agreement; or (c) any civil or military action, including national emergencies, riots, war, terrorism and civil insurrections (“Force Majeure Event”). If the Force  Majeure Event continues beyond thirty (30) days, thereafter upon ten (10) days written notice to Accelecom,  Customer may terminate only the affected Service(s) or Circuit(s), without incurring any penalty or further  obligation to the Accelecom. 

12. ASSIGNABILITY

Customer may not assign or in any way transfer the Agreement or any rights or obligations under the Agreement without Accelecom’s prior written consent. Any assignment without Accelecom’s prior written consent shall be  void. Accelecom may assign its rights and obligations under the Agreement, in whole or in part, without the prior  approval of Customer. 

13. BUILDING AND EQUIPMENT ACCESS; SITE CONDITIONS

13.1 Site Access; Site Conditions. Customer shall allow Accelecom reasonable, escorted access to the  Customer Site or any End User Site to install, operate, maintain, repair, remove, and replace (collectively “Work”)  fiber optic cable, co-axial cable, copper wiring, antennas, and any other transmission medium and associated  equipment (collectively, the “Accelecom Equipment”) in and on the Customer Site or End User Site for purposes  of providing Services under the Agreement. Customer shall obtain all rights of way, public and private easements,  licenses and consents with respect to the Work. Notwithstanding any provision to the contrary, Accelecom  reserves the right to issue revised Monthly Recurring Charges, Non-Recurring Charges, and/or revised Order  Confirmations, or terminate any one or more Site(s) pursuant to an accepted Service Order without liability, in  the event that Accelecom identifies any unexpected costs or impediments as a result of a site survey.  

13.2 Space and Power. Customer shall, upon Accelecom’s request and at no cost to Accelecom, (a) provide  adequate clean electrical power to meet Accelecom’s reasonable requirements, during the applicable Service Order Term, at the Site(s) specified in the applicable Service Order, as well as all necessary connections to  electrical and mechanical facilities at the Customer Site or End User Site as are necessary for the operation of  Accelecom Equipment in the Customer Site or End User Site; and (b) provide floor space, an equipment bay, or equipment rack space at the Customer Site or End User Site.

13.3 Ownership of Accelecom Equipment. The Accelecom Equipment, and any and all other equipment used  to provide the Services, shall remain the exclusive property of Accelecom and not be considered fixtures to any  Customer Site or End User Site. Customer shall ensure that the Accelecom Equipment at any Customer Site or  End User Site remains free from all liens and encumbrances, and Customer shall be responsible for loss or damage  to the Accelecom Equipment while at the Customer Site or End User Site. Customer agrees to conform its  equipment and software, and to ensure that each End User conforms its equipment and software, to the technical  specifications provided by Accelecom from time to time. Customer shall not, and shall ensure that its End Users  shall not, tamper with, remove, or conceal any identifying plates, tags, or labels affixed to such equipment, nor  align, or attempt to repair, Accelecom Equipment except as expressly authorized in advance in writing by  Accelecom. Unless otherwise agreed in writing by the Parties, interconnection of the Accelecom Equipment with  Customer’s equipment will be performed by Customer. Accelecom Equipment shall not be removed or relocated  by Customer or any End User. Accelecom shall have the right, but not the obligation, to upgrade, modify, and  enhance the Accelecom Equipment (including related firmware) and the Service(s) and take any action that  Accelecom deems appropriate to protect the Accelecom’s network and Accelecom Equipment.  

14. NOTICES

Any legal notice or demand to Accelecom shall be in writing and delivered by hand delivery (including overnight  mail delivery service or courier) or mailed by first-class registered or certified mail, return receipt requested and postage prepaid, to the following address and such notice shall be effective on the date of receipt by Accelecom: 

OpenFiber Kentucky Company, LLC 
1700 Eastpoint Parkway, Suite 230 
Louisville, Kentucky 40223 
Attn: Accelecom Office Manager – Legal Notice 

Notices for the disconnection or termination of Services shall be sent via email to openfiber@openfiberky.com or  made via phone call to 502-586-7600. Such notices shall be effective thirty (30) days after Accelecom’s receipt  of the notice or such other date when processed and implemented by Accelecom. 

Notices from Accelecom to Customer may be made and shall be deemed effective when made to pursuant to  information set forth on an applicable Service Order. Customer may update its notice address via email to  openfiber@openfiberky.com

15. MISCELLANEOUS

15.1 Entire Agreement. The Agreement sets forth the entire understanding of the Parties and supersedes all  prior agreements, interim agreements, letters of agreement, memorandums of understanding, and any other oral  or written documentation of agreements between the Parties hereto with respect to the subject matter hereof. In the event of any inconsistency, precedence shall be given in the following order to: (a) the main body of these  Terms; (b) Exhibit(s) hereto; (c) any Order Confirmation; and (d) any Service Order. 

15.2 Legal Relationship. Nothing in the Agreement shall be deemed to create any relationship between  Accelecom and Customer other than that of independent parties contracting with each other solely for the purpose  of carrying out the provisions of the Agreement. The Agreement does not render either Party the employee, agent, or legal representative of the other Party and does not create a partnership or joint venture between Customer and Accelecom. Neither Party shall have any authority to enter into any agreement on behalf of or bind the other Party  in any manner whatsoever without the prior written consent of the other Party. These Terms confer no rights of  any kind upon any third party, except as specifically set forth herein. In providing the Services to Customer under  the Agreement, Accelecom is not acting as an agent for the Commonwealth of Kentucky (the “Commonwealth”)  or Operations Co. 

15.3 Service Description; Commonwealth Revenue Share. In providing the Services to Customer under the  Agreement, Accelecom shall use the KentuckyWired Network (also referred to as the NG-KIH System). For any  Services provided to Customer and utilizing network transport routes within the Commonwealth, Accelecom shall  use a route between the county in which the Customer Sites are located along the KentuckyWired Network. In  addition, Accelecom agrees, for the benefit of Customer and the Commonwealth, that Accelecom shall pay to the  Commonwealth a portion of the revenue derived under the Agreement consistent with the terms set forth in that  certain Wholesaler Agreement dated as of October 13, 2017, by and between Accelecom and the Commonwealth.  Accelecom and Customer acknowledge and agree that charges to be paid in accordance with the Agreement are  based on Accelecom’s obligation to share revenue with the Commonwealth. 

15.4 Compliance with Laws. In connection with the Agreement, each Party shall comply with all applicable laws and regulations, including, but not limited to, the Telecommunications Act of 1996, as may be amended, and the policies, rules, and regulations of the Federal Communications Commission, and all applicable local and state, laws, rules, and regulations. Customer’s use of the Service(s) (including all content transmitted via the Service(s)) shall comply with all applicable laws and regulations and the Agreement, and Customer shall ensure that its End  Users’ use of the Service(s) shall comply with all applicable laws and regulations and the Agreement. If any provision of the Agreement contravenes or is in conflict with any law or regulation, then the terms of such law or regulation shall take priority over the relevant provision of the Agreement. If the relevant law or regulation applies to some but not all of the Service(s) being provided under the Agreement, then such law or regulation will take priority over the relevant provision of the Agreement only for purposes of those Service(s) to which the law or regulation applies. Except as explicitly stated in the Agreement, nothing contained in the Agreement shall constitute a waiver by Accelecom of any rights under applicable laws or regulations pertaining to the installation, operation, maintenance, or removal of the Services, facilities, or equipment. 

15.5 Waiver. No waiver of any of the provisions of the Agreement shall be binding unless it is in writing and  signed by Accelecom. Accelecom’s waiver of a breach or Default, or the failure on one or more occasions to insist on the strict enforcement of any provision of the Agreement or to exercise any right or privilege shall not constitute or be construed as a waiver of any subsequent breach or default of a similar nature, or any provision,  rights or privileges, and all such terms shall remain in full force and effect.

15.6 Amendments. No subsequent agreement among the Parties concerning the Service(s) (including, without  limitation, any amendment to any Service Order) shall be effective or binding unless it is agreed to in writing by  an authorized representative of Accelecom. ACCELECOM, HOWEVER, RESERVES THE RIGHT TO,  FROM TIME-TO-TIME, CHANGE THE AGREEMENT (INCLUDING THESE TERMS) UPON AT  LEAST THIRTY (30) DAYS PRIOR NOTICE OF SUCH A CHANGE. Except for a change required by law  or regulation (which shall not be subject to objection), Customer shall make any objection to such change by written notice as set forth in Section 14 above. Absent such objection, the changed Agreement terms shall become effective on the date set forth in Accelecom’s notice of such change. In the case of an objection, Accelecom  reserves the right to terminate the Agreement (in whole or in part) or allow Customer to continue under the prior Agreement terms.

15.7 Severability. If any part of any provision of the Agreement or any other agreement, document, or writing  given pursuant to or in connection with the Agreement shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of the Agreement.

15.8 Governing Law.  

(a) The Agreement and all matters relating to the Agreement shall be construed and enforced in accordance  with the laws of the Commonwealth without regard to its choice of law principles. Any judicial action relating to  the Agreement shall be brought in the United States District Court for the Western District of Kentucky or, if such  court would not have jurisdiction over the matter, then only in a Kentucky State court sitting in Jefferson County,  Kentucky, and Customer consents to the jurisdiction and venue of such courts. 

(b) THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH  RESPECT TO ANY DISPUTES, CLAIMS OR ISSUES ARISING OUT OF OR CONNECTED IN ANY WAY  TO THE AGREEMENT, BECAUSE THE PARTIES HERETO BELIEVE THAT THE COMPLEX  COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE  A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE. 

15.9 Publicity. Neither Party shall use the other Party’s or its affiliates’ names or logos, or otherwise issue any  publicity releases or make any public statement(s) (whether in the form of news releases, advertising or solicitation  materials, or blog or social media postings) relating to the Agreement or the Services to be performed under the  Agreement, without the prior written approval of the other Party.  

15.10 Survival. The terms and provisions contained in the Agreement that by their sense and context are  intended to survive the performance thereof by the Parties shall survive the completion of performance and termination of the Agreement, including, without limitation, the making of any and all payments under the Agreement.


EXHIBIT A

SERVICE LEVEL AGREEMENTS 

ETHERNET SERVICES AND DEDICATED INTERNET SERVICES

This document contains Accelecom’s Trouble Ticketing Procedure, Service Level Agreements (“SLA”), and associated  Service Level Objectives (“SLOs”) for network Services performance and operational measurements that will be provided  with Services. Capitalized terms not defined in this Exhibit A have the meanings given to them in the Terms.

1. TROUBLE TICKETS

A. Trouble Ticket/SLA Defined Terms

For purposes of this Exhibit A, the following terms have these meanings: 

Emergency Maintenance” means maintenance which, if not accomplished promptly by Accelecom, could result  in a serious degradation or loss of Service(s) to Customer. 

Overrun” means a condition in which the sum of the provisioned Ethernet Virtual Circuit (“EVC”) bandwidth on  a User to Network Interface (“UNI”) port utilization exceeds the ordered port bandwidth. 

Planned Service Outage” means any Service Outage (as defined below) caused by scheduled maintenance or  planned enhancements or upgrades to Accelecom’s Network or Emergency Maintenance and either (i) agreed to in writing  by Customer’s operations group via e-mail or other means, such agreement not to be unreasonably withheld, provided the  scheduled maintenance or planned enhancements or upgrades are performed within the hours of 12:00 midnight and 6:00  AM local time, unless otherwise agreed by the Parties, or (ii) in the case of Emergency Maintenance, Accelecom’s  operations group provides as much prior notice as practicable, via e-mail or other means. 

Service Outage” means an unavailability of the Service such that no traffic can be transmitted between two Points  of Termination; provided that a Service Outage will not be deemed to have occurred in the event that it arises from or  relates to any of the following: (i) the negligence, error, acts or omissions of Customer or others authorized by Customer  to use the Service; (ii) failure of Customer-provided equipment; (iii) resulting from any period in which Accelecom or its  agents are not afforded access to any premises where the access lines associated with the Service are terminated; (iv) during  any period when Customer has released Services to Accelecom for maintenance or rearrangement purpose (including,  without limitation, during any Planned Service Outage); (v) any period when Customer elects not to release the Service(s)  for testing and/or repair and continues to use it on an impaired basis; (vi) a Force Majeure Event; (vii) interruptions relating  to, resulting from, or occurring during any Overrun; or (viii) a breach by Customer of its obligations under the Agreement.  

B. Trouble Tickets

When Customer believes that a Service Outage has occurred, Customer may contact Accelecom via email to  openfiber@openfiberky.com or via phone call to 502-586-7600, to initiate the trouble ticket procedure (“Trouble Ticket”).  If Accelecom determines there is a Service Outage, Accelecom and Customer will cooperate to restore Service. If the  Service Outage is caused by a factor outside the control of Accelecom, Accelecom will cooperate with Customer to conduct  testing and repair activities at Customer’s cost and at Accelecom’s standard technician rates.  

C. Overruns

Customer shall at all times ensure that the bandwidth on each UNI is within its ordered bandwidth so that Overruns do not  occur. If any Overruns do occur, however, during any Overrun, Customer shall adjust its traffic downward so as to eliminate  the Overrun and Accelecom shall be excused from meeting any specifications set forth in the Service Order and any SLAs  during and as a result of the Overrun. The duration of any Overrun shall not be included in the calculation of any Service  level performance metric. 

D. Problem Costs

In the event Accelecom dispatches a field technician to a Site to perform diagnostic troubleshooting and the problem resides  with Customer’s equipment or facilities or results in a “No Trouble Found,” or the failure is due to Customer acts or  omissions, then Customer shall pay Accelecom for time and materials at Accelecom’s standard technician rates

2. SLA PERFORMANCE DESCRIPTIONS

A. Service Availability

Service availability (“Service Availability”) is calculated after the Customer opens and Accelecom confirms a Trouble Ticket based on unavailability of the Services with Accelecom, and is based on the availability of the Services during the monthly Services billing period in which the Customer opens the Trouble Ticket.  

B. Frame Loss Ratio

The Frame Loss Ratio (“Frame Loss Ratio”) is defined as the percentage of the number of service frames across a particular service instance not delivered in relation to the total number of service frames sent calculated over the monthly Service billing period. 

C. Mean Frame Delay

“Mean Frame Delay” is the arithmetic mean of delays experienced by a set of frames that egress an external interface  (UNI) as a result of an ingress frame at another external interface (UNI) except where any frame delay is the result of  an excluded disruption.  

D. Frame Delay Variation

Frame Delay Variation” is defined as the average variation in delay for two consecutive frames that are transmitted (one way) from one external interface (UNI) to another external interface (UNI). Accelecom measures a sample set of frames,  unless measurement is not possible as a result of an excluded disruption, and determines the average delay between  consecutive frames within each sample set.

3. FAULT MANAGEMENT

A. Mean Time to Respond

The mean time to respond (“MTTR”) measurement for a Service is the average time between the time a Trouble Ticket  is opened by Customer, and the time Accelecom delivers a response to Customer’s Trouble Ticket. The “average  time” is determined based on all Trouble Tickets with the same severity level associated with the same Service Outage  (as defined below).  

There are two (2) priority levels of Trouble Ticket severity (Critical and Major). 

MTTR objectives for each severity level are: 

Severity 1 – Critical Average within 4 hours 
Severity 2 – Major Average within 8 hours 

Severity 1 – Critical” is defined as a complete outage affecting Customer’s Services. 
Severity 2 – Major” is defined as a partial outage or service degradation affecting Customer’s

Accelecom will use commercially reasonable efforts to provide seven (7) days’ notice to Customer of all such  maintenance that is expected to result in a Planned Service Outage. For Emergency Maintenance, Accelecom shall  notify Customer as soon as is commercially practical under the circumstances. Planned Service Outages will not be  calculated against SLA measurements. If routine network maintenance exceeds the time scheduled and results in a  Service Outage, Customer will be entitled to Outage Credits as specified below.

4. ROUTINE NETWORK MAINTENANCE WINDOWS

Unless otherwise agreed to between the Parties, routine network maintenance is performed during Accelecom’s  standard maintenance windows. Maintenance windows are as follows: 

12 a.m. – 6 a.m. Local Time, Monday through Friday 

If Planned Service Outages are expected during these specified times, Customer will be notified via email to the contact  designated by the Parties. This notification will inform the Customer of the anticipated time, duration and reason for  the network maintenance. While the specified maintenance window is six (6) hours in length, it is atypical that a given  maintenance would require use of this entire window.

5. SERVICE LEVEL AGREEMENT

The following section is a description of Accelecom’s monthly average network performance SLAs for the  Service. Note: SLAs do not apply if UNI is oversubscribed. 

SLA MetricEthernet
Service Availability Metro (<250km), Regional (<1200km)99.99%
Frame Loss Ratio0.05%
Mean Frame Delay Roundtrip – Metro (<250km)≤ 8ms
Mean Frame Delay Roundtrip – Regional (<1200km)≤ 20ms
Frame Delay Variation≤ 2ms
MTTR (Depending on Severity)4 – 8 Hours

Dedicated Internet

SLA MetricOFKY Enterprise
Service Availability Metro (<250km), Regional (<1200km)99.99%
Frame Loss Ratio≤ 0.01%
Latency / Frame Delay (Roundtrip)≤ 33ms
Jitter / Frame Delay Variation≤ 3ms
MTTR (Depending on Severity)4 Hours

6. OUTAGE CREDITS

For Enterprise Fiber Service: In the event of a Service Outage that lasts for a continuous period of forty-four (44)  minutes, and provided that Customer submits a request in accordance with the “Remedies” section below, Accelecom shall provide a credit (the “Outage Credit”) as follows: 

Length of Service Outage (cumulative)Credit
Between 44 Minutes – 2 Hours5% of Monthly  
Recurring Charge
Between 2 – 4 Hours10% of Monthly  
Recurring Charge
Between 4 – 12 Hours20% of Monthly  
Recurring Charge
Between 12 – 24 Hours30% of Monthly  
Recurring Charge
24 Hours or Greater50% of Monthly  
Recurring Charge

THE PROVISIONS OF THIS SECTION 6 STATE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR  SERVICE OUTAGES OR SERVICE DEFICIENCIES OF ANY KIND WHATSOEVER.  

NO SLAS/SLOS ARE OFFERED FOR BEST EFFORT ETHERNET AND INTERNET SERVICES. FOR THE  AVOIDANCE OF DOUBT, THE PROVISIONS OF THIS SECTION 6 DO NOT APPLY TO BEST EFFORT  ETHERNET AND INTERNET SERVICES AND SUCH SERVICES ARE OFFERED ONLY AS-IS AND AS  AVAILABLE.

A. Remedies

Upon Customer’s request to the Accelecom Help Desk made within thirty (30) business days of the closing of a Trouble  Ticket in which the relevant Service Availability objective was not met, Customer shall be entitled to Outage Credits  as set forth herein. The maximum Outage Credit issued in any one calendar month shall not exceed fifty percent (50%)  of the applicable month’s Monthly Recurring Charge for the affected Service. Customer may request only one credit  per Service Outage per month.  

B. Service Outage Start/End Time For Outage Credit Calculation Purposes

When a Service Outage occurs, the start time will be recorded as the time when Customer opens a Trouble Ticket for  the affected Service and Accelecom acknowledges receipt of such Trouble Ticket and validates that the Service is  affected by an Outage. A Service Outage is concluded when Accelecom determines such concludes the Service Outage  no longer exists, and will subsequently contact Customer via Trouble Ticket and/or e-mail.  

Credit Exceptions

Notwithstanding any provision to the contrary, credits will not be issued where the SLA is not met as a result of: 

(a) The acts or omissions of Customer, its employees, contractors or agents or its end users; 

(b) The failure or malfunction of Customer owned equipment, applications, wiring beyond the Minimum Point of Entry (MPOE) or systems, whether owned, installed or controlled by Accelecom or Customer, including the failure or malfunction of Customer Premise Equipment or systems as a result of a power surge or loss of power originating from Customer provided electric power; 

(c) Force Majeure Events, as defined in the Terms; 

(d) Normal Maintenance, Urgent Maintenance, or Service alteration or implementation; 

(e) The unavailability of required Customer personnel, including as a result of failure to provide Accelecom with accurate, current contact information; 

(f) Accelecom’s lack of access to the Customer Site where reasonably required; 

(g) Customer’s failure to release the Services for testing or repair and continuing to use the Services on an impaired basis; 

(h) Accelecom’s termination of Services for Cause or Customer’s use of Services in an unauthorized or unlawful manner; 

(i) Improper or inaccurate network specifications provided by Customer; or 

(j) Customer’s failure to materially comply with its obligations as set forth in the Agreement, including failure to pay valid past-due amounts; order suspensions due to customer’s credit worthiness.