Forsythe Solutions Group, Inc. Supplemental Terms and Conditions: Internet Bandwidth

The Supplemental Terms and Conditions (the “Supplement”) detailed herein apply to purchases of internet bandwidth services delivered over the Forsythe Solutions Group, Inc. (“FSG”) network (the “Services”). This Supplement is governed by, and incorporated into, the applicable master agreement and sales order in place with FSG (collectively, the “Agreement”).
1. GENERAL; DEFINITIONS
1.1 Service Description. FSG’s Bandwidth service provides Internet Protocol (“IP”) connectivity to the Internet utilizing the FSG network.
1.2 Use of FSG IP Addresses. Any IP Addresses assigned to a client (each, a “Client”) by FSG remain the sole possession of FSG, and may be used only in connection with and for the duration of the Services purchased. In the event Client discontinues the use of the Services for any reason, or this Supplement terminates for any reason, Client’s right to use the IP Addresses (defined below) shall terminate within ten (10) business days.
1.3 Definitions. Unless otherwise defined herein, capitalized terms in these terms and conditions shall have the definitions attributed thereto in the Agreement.
o “Bandwidth” - the measured rate of bits per second transferred over the FSG network from and to Client’s equipment.
o “Burst Bandwidth” - the amount of Bandwidth in excess of Client’s committed level as further defined below.
o “IP” – Internet Protocol, the basic rules and encoding specifications for sending data on the Internet.
o “IP Addresses” – One or more IP address numbers.
2. SERVICE-SPECIFIC CHARGES AND SERVICE TYPES
2.1 General Connectivity. Subject to the terms and conditions contained herein, FSG will provide to Client connectivity of its equipment to the FSG network to enable the transfer of Internet Bandwidth on terms specified in a sales order.
2.2 Billing for Bandwidth. Billing for Bandwidth is performed on a calendar-month basis. Any Bandwidth used on a partial-month basis shall be subject to the 95th percentile calculations of the full calendar month. Billing for Bandwidth usage will follow the "95th percentile" rule: Usage samples will be collected and sorted from highest to lowest and the top 5% discarded in any given calendar month. The next highest sample (the 95th percentile number) will then be used as the basis in computing the charge for the month for incremental Bandwidth beyond the committed level. Charges for Burst Bandwidth will be billed after the end of the month.
2.3 Other Networks. Client is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the FSG network or through other public and private networks. FSG is not responsible or liable for performance or non-performance of such networks or their inter-connection points.
3. SERVICE LEVEL AGREEMENT
FSG will use commercially reasonable efforts to provide a highly available and performing network.
3.1. Network availability.
A. Network availability refers to the ability of Client to traverse FSG’s IP network to reach one or more upstream IP providers. FSG’s IP network is defined as the switches, routers, and cabling between the Client-facing Ethernet hand-off and the Ethernet port facing the upstream provider within a single FSG facility.
B. Network unavailability is defined as packet loss in excess of twenty percent (20%) for ten (10) consecutive minutes or two (2) five (5) minute polling intervals, whichever is longer.
C. To determine compliance, FSG monitors all core-routing network infrastructures for device availability both internally and externally.
3.2. Network Performance.
A. Network performance refers to the latency and/or packet loss observed by Client when accessing FSG’s network.
B. FSG guarantees an average round trip latency of not more than fifty milliseconds (50ms) on its IP network within the FSG facility and at least ninety-nine percent (99%) sustained packet delivery within the facility.
C. Network performance degradation is defined as latency in excess of fifty milliseconds (50ms) or packet loss in excess of one percent (1%) for two (2) consecutive hours or more. Latency is measured as round trip times between the FSG-owned Client hand-off edge router and the FSG-owned upstream provider hand-off router.
D. To determine compliance, measurements are taken on a continual basis on FSG’s IP network from the local FSG monitoring system to all FSG core routing equipment.
3.3. Service Level Warranties & Remedy.
A. Network Unavailability. If Client is unable to transmit and receive information across FSG’s IP network for more than twenty (20) consecutive minutes, FSG will credit Client’s account the pro-rata FSG connectivity charges (i.e., all bandwidth related charges) for one (1) day of Service. For each additional thirty(30) consecutive minutes the outage lasts, an additional one (1) day of pro-rata credit is due up to an aggregate maximum credit of connectivity charges for seven(7) days of Service in any one calendar (1) month.
B. Network Performance Degradation. If FSG discovers (either from its own efforts or after being notified by Client) that Client is experiencing transmission latency in excess of thirty milliseconds (30ms) round trip time (based on FSG’s measurements) between Client’s edge router and provider edge router (“Latency”) or packet loss in excess of one percent (1%) between Client edge router and provider edge router(“Packet Loss”), FSG will take all reasonable actions necessary to determine the source of the Packet Loss or Latency. If FSG is unable to determine the source of and remedy the Packet Loss or Latency within four (4) hours, FSG will credit Client’s account the pro-rata FSG connectivity charges for one (1) day of Service for every two (2) hours after the time periods described above that it takes FSG to resolve the problem, up to an aggregate maximum credit of connectivity charges of seven (7) days of Service in any one (1) month.
3.4. Client Credit Request.
Client must notify FSG within five (5) business days from the time Client becomes eligible to receive a credit under this Supplement to receive such credit. Failure to comply with this requirement will forfeit Client’s right to receive a credit. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges, and similar additional charges.
3.5 Service Credits. The credit for a failure to meet the Uptime Commitment for Bandwidth Service shall be equal to 1/30th of the monthly recurring charge for the affected Bandwidth Service for each cumulative hour of Network Unavailability that fails to meet the Uptime Commitment for Bandwidth Service during the relevant month.
3.6. Notification & Request for Credit.
A. Client may report Service interruption events or outages by contacting the FSG support team. Any outages that may be eligible for credits must be documented via the FSG ticketing system by either Client or FSG personnel.
B. Client must notify FSG within five (5) business days from the time Client becomes eligible to receive a credit under this Supplement to receive such credit. Failure to comply with this requirement will forfeit Client’s right to receive a credit. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges, and similar additional charges.
3.7. Exclusions. Client shall not receive any credits under this Supplement in connection with any failure or deficiency caused by or associated with any of the following:
A. Periodically, FSG will upgrade, repair, or replace vital network equipment. FSG will make a reasonable effort to notify the Client prior to performing work, generally referred to as “maintenance events” and/or “maintenance window”. During these maintenance windows, FSG will take all reasonable steps to maintain a working network throughout; however, there is always a possibility of Service interruptions during complex maintenance events. These maintenance events, necessary for providing a consistently high level of Service, are not considered network unavailability or network performance degradation, and therefore do not qualify for service credits.
B. Any network unavailability or performance degradation that is the direct result of Client’s, or its agents’, misconfiguration, Client network saturation, or Client’s failure to properly deploy redundant connections to FSG’s IP network shall not be subject to the provisions of this Supplement.
C. FSG maintains sufficient connectivity to upstream IP carriers to ensure that failure of any one provider will not impact Internet access. However, since IP carriers are outside of FSG’s control, any impact on Client’s Service resulting from any misconfiguration or partial failures within an upstream IP carrier’s network is not subject to the provisions of this Supplement.
D. FSG shall not be liable for any failure of uptime or performance due to causes beyond its reasonable control. Client’s sole and exclusive remedy for any or all breaches of this Supplement by FSG and any damages incurred by Client, and FSG’s sole obligation, shall be limited to the credits detailed herein.