1. Application of VPS Hosting/NTT Verio Backbone SLA

These NTT/Verio Backbone Service Level Agreements (SLAs) provide Customers in North America with certain rights and remedies regarding the performance of the NTT/Verio Backbone (as defined below). These NTT/Verio Backbone SLAs apply only to North American Customers receiving the following services from NTT/Verio or VPS Hosting: (i) T1, T3, OC3, OC12, OC48 or Ethernet services, and/or (ii) colocation or dedicated server services utilizing the NTT/Verio Backbone (each a "Customer"), unless otherwise specified for a Customer.

2. Definitions

For purposes of these NTT/Verio Backbone SLAs, the following terms have the meanings set forth below:

• "NTT/Verio Backbone" means NTT/Verio owned and operated Internet Protocol (IP) routing infrastructure consisting solely of selected NTT/Verio points of presence at which NTT/Verio has installed measurement devices ("Selected POPs") (i) within the United States and the connections between them in the forty-eight continental United States (the "North American Network"), (ii) within Europe and the United States and the Trans-Atlantic connections between such Selected POPs (the "Trans-Atlantic Network") and (iii) within Asia and the United States and the Trans-Pacific connections between such Selected POPs (the "Trans-Pacific Network").
  
  
• "Network Outage" means an instance in which no traffic can pass in or out of the Selected POP through which Customer connects to the NTT/Verio Backbone for more than 15 consecutive minutes.
  
  
• "Latency" means the average time required for round-trip packet transfers between Selected POPs on the selected portions of the NTT/Verio Backbone during a calendar month, as measured by NTT/Verio.
  
  
• "Packet Loss" means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by NTT/Verio.
  
  
• "Average Jitter" means the average variation in delay for packet transfers between Selected POPs during a calendar month, as measured by NTT/Verio.
  
• "Maximum Jitter" means the maximum variation in delay for packet transfers between Selected POPs, as measured by NTT/Verio.
  
  
• "Base Fee" consists solely of the base monthly fee paid by Customer for the affected NTT/Verio and thus VPS Hosting service and excludes all other fees which might be charged to Customer, including, by way of example and not limitation, set-up fees, fees for local loop, space rental fees, charges for additional services such as managed services, incremental bandwidth usage, electricity, extra IP addresses, RAM, or hard drives beyond that which is available without additional charge under VPS Hosting standard rates, hourly support charges, and other types of optional additional services.

  For example, for Dedicated Server Customers, the Base Fee may include just the fee for the standard server package, which would cover the use of the server and up to the amount of data transfer allowed each month without additional charge. For Customers of other VPS Hosting services, the Base Fee may include just the base monthly access or bandwidth fee paid by a Customer.

3. Summary of NTT/Verio Backbone SLAs

As described in more detail below, theseNTT/ Verio Backbone SLAs provide commitments based upon goals in four key areas:

• The NTT/Verio Backbone available to Customer free of Network Outages 100% of the time.
  
  
• Latency of the NTT/Verio Backbone of (i) 50 milliseconds or less for the North American Network, (ii) 90 milliseconds or less for the Trans-Atlantic Network and (iii) 130 milliseconds or less for the Trans-Pacific Network.
  
  
• Packet Loss of the NTT/Verio Backbone of 0.1% or less.
  
  
• Average Jitter on the NTT/Verio Backbone of 250 microseconds or less; and Maximum Jitter not to exceed 10 milliseconds more than 0.1% of the time.
  
  

4. NTT/Verio Backbone Availability

NTT/Verio's goal is to make the NTT/Verio Backbone available to Customer free of Network Outages 100% of the time.

Subject to Sections 9 and 10 below, upon Customer's request, VPS Hosting will issue a credit to Customer for Network Outages in an amount equal to one day's worth of the Base Fee paid by Customer, multiplied by each hour (or portion thereof rounded to the next hour) of the cumulative duration of such Network Outages during a particular month.

5. NTT/Verio Backbone Latency

NTT/Verio's goal is to keep Latency on the NTT/Verio Backbone to (i) 50 milliseconds or less for the North American Network, (ii) 90 milliseconds or less for the Trans-Atlantic Network and (iii) 130 milliseconds or less for the Trans-Pacific Network.

Subject to Sections 9 and 10 below, if Latency on the North American Network, the Trans-Atlantic Network or the Trans-Pacific Network, as applicable, for a calendar month exceeds the time frame set forth above for the applicable portion of the NTT/Verio Backbone, VPS Hosting will issue a credit to Customer equal to one day's worth of the Base Fee paid by Customer for such month.

The terms of this NTT/Verio Backbone SLA related to Latency will take effect the first full calendar month after Customer's first use of the NTT/Verio Backbone.

6. NTT/Verio Backbone Packet Loss

   NTT/Verio's goal is to keep Packet Loss on the NTT/Verio Backbone to 0.1% or less. If Packet Loss on the NTT/Verio Backbone exceeds 0.1% during a calendar month, VPS Hosting will issue a credit to Customer equal to one day's worth of the Base Fee paid by Customer for such month.

   The terms of this NTT/Verio Backbone SLA relating to Packet Loss will take effect the first full calendar month after Customer's first use of the NTT/Verio Backbone.

7. NTT/Verio Average and Maximum Jitter

   NTT/Verio's goal is to keep Average Jitter on the NTT/Verio Backbone to 250 microseconds or less; and for Maximum Jitter not to exceed 10 milliseconds more than 0.1% of a calendar month. Subject to Sections 9 and 10 below, if Average Jitter on the NTT/Verio Backbone exceeds 500 microseconds; or if Maximum Jitter exceeds 10 milliseconds more than 0.1% of a calendar month, VPS Hosting will issue a credit to Customer equal to one day's worth of the Base Fee paid by Customer for such month.
   
   The terms of this NTT/Verio Backbone SLA relating to Jitter will take effect the first full calendar month after Customer's first use of the NTT/Verio Backbone.

8. Measurement

   NTT/Verio will periodically (on average every 5 minutes) measure the NTT/Verio Backbone at Selected POPs using software and hardware components capable of measuring traffic and responses at such Selected POPs. Customer acknowledges that not every POP may be covered by such measurements, that such measurements may not measure the exact path traversed by Customer's packets, and that such measurements constitute measurements across the NTT/Verio Backbone but not other networks to which Customer may connect. NTT/Verio reserves the right to periodically change the measurement points and methodologies it uses without notice to Customer.

9. Exceptions

   Customer shall not receive any credits under these NTT/Verio Backbone SLAs in connection with any failure or deficiency of the NTT/Verio Backbone caused by or associated with:

   (i) circumstances beyond VPS Hosting and NTT/Verio's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the NTT/Verio Backbone SLAs;
   
   (ii) failure of access circuits to the NTT/Verio Backbone, unless such failure is caused solely by NTT/Verio;
   
   (iii) scheduled maintenance and emergency maintenance and upgrades;
   
   (iv) DNS issues outside the direct control of NTT/Verio;
   
   (v) false SLA breaches reported as a result of outages or errors of any NTT/Verio measurement system; or
   
   (vi) Customer's acts or omissions (or act or omissions of others engaged or authorized by Customer), including without limitation, any negligence, willful misconduct, or use of the NTT/Verio Backbone or NTT/Verio services in breach of NTT/Verio's or VPS Hosting Terms and Conditions of Service or NTT/Verio's or VPS Hosting Acceptable Use Policy.
   

10. Credit Request and Payment Procedures

    In order to receive a credit, Customer must make a request therefore by sending an e-mail to billing/@/vpshosting.net (remove the forward slashes from the previous e-mail address). Each request in connection with a Network Outage must be received by VPS Hosting within 48 hours of the Network Outage and must be confirmed by NTT/Verio's measurements of the NTT/Verio Backbone. VPS Hosting must receive each request in connection with Latency or Packet Loss in a calendar month within 48 hours after the end of such month.

    Each valid credit will be applied to an invoice of Customer within two billing cycles after VPS Hosting' receipt of Customer's request therefore. Credits are exclusive of any applicable taxes charged to Customer or collected by VPS Hosting.

    Notwithstanding anything in this NTT/Verio Backbone SLA to the contrary, the total amount credited to a Customer in connection with Network Outages, Latency, Jitter and Packet Loss in any calendar month will not exceed the Base Fee paid by Customer for such month.