Alpha Support

If a circumstance arises in which these targets are not sufficient for a specific issue being experienced by the customer, escalation of established tickets may be requested by the customer. The request must be a brief statement as to the criticality of the issue, impact on the operations, and expectations as to required resolution time.

For escalation of issues involving the Alpha Data Center, please refer to the Data Center Escalation Process.

Exhibit F

Data Backup Services Backup Services Description & Terms

Backup Services. The following additional terms and conditions are incorporated into and made part of this Agreement: 

1. Alpha will provide the support, including software, hardware, and Services, necessary to back up Customer’s data to the backup systems located at Alpha’s Data Center. Alpha will work with the customer to identify the data to be backed up and the type of data retention necessary to be in compliance with the Customers existing data retention policy. Alpha will provide a configuration outline showing what data is to be backed up and the retention of said data. Customer will sign off on all configurations prior to data backup. As part of its backup program Alpha will provide reports to the Customer showing status of back up jobs. In the event of a backup failure Alpha will troubleshoot and address issues resulting in failed backup.
2. If Customers backup exceed the amount of space allocated on the applicable Managed Services Quote incorporated into this Agreement, Customer will be notified of the extent of the overage and be presented with an Amendment to order additional space for continued provision of the Backup Services.
3. Alpha will guarantee the backup of data to its systems but will not guarantee or warranty the functionality of said data as the backup system is designed to back up any and all data that is flagged by the Customer. Additionally, the failure of a backup to be determined a result of bandwidth or lack of bandwidth between the customer does not constitute a failure on behalf of Alpha and Alpha’s backup systems component. The testing of the backups is the responsibility of Customer. Alpha will cooperate with a request by Customer to assist with the testing of the backups and shall charge time and materials for any and all assistance rendered.
4. In the event that the Customer notifies Alpha of the need for Alpha’s assistance in restoring a backup to Customer’s server located in Customer’s premises, Alpha shall charge, and Customer shall pay fees for Alpha’s time and materials, including, but not limited to, use of portable storage equipment required to perform the requested restoration.
5. In the event that the Customer notifies Alpha of the need for Alpha’s assistance in restoring a backup to a server in Alpha’s Data Center, Alpha shall charge, and Customer shall pay, fees for Alpha’s time and materials, plus any additional charges, including, but not limited to, server creation fees and operating system license fees, required to perform the requested restoration. Alpha shall charge Customer for the required server on a basis substantially the same as charged by national hosting services.
6. As may be necessary, Customer agrees to cooperate in the startup phase of this Service by providing or assisting Alpha with the capabilities, systems, or services required for proper functioning the Backup Services. This includes, but not is limited to, access to Customers equipment, and creation of a virtual private network for transmitting and receiving the backup All charges for Customer’s acquisition and use of the Internet or dedicated data circuit connection of sufficient capacity, shall be paid by Customer.
7. Alpha’s target for the restore time objective shall be twenty-four (24) hours, starting with the notification of the request by means of the creation of a ticket within Alpha’s ticketing system.
8. Unless otherwise mutually agreed, Alpha will retain backup data for a maximum of fourteen (14) days. Customer understands and agrees that data requested to be restored after that time period will not be available.

Exhibit G

Alpha Voice Services General Terms & Conditions

This “Alpha Voice” Communications Services Master Terms and Conditions, together with the Quote to which this is attached, and all attachments hereto, including, but not limited to, Exhibit A, and the like, as may be made available by Alpha from time to time, collectively hereinafter “Alpha Voice Agreement” or “Agreement”, sets forth the terms and conditions which apply to certain Alpha Voice communications services, as more fully defined herein, provided by Alpha Innovations (hereinafter “Alpha”, “our”, or “we”), under the offering referred to as “Alpha Voice” or the “Service” or “Services”, as more fully defined herein, is by and between Alpha and Customer as set forth in the Quote to which this Agreement is attached, “you”, or “your”), and is effective as of the Effective Date of the Quote to which this Agreement is attached, each are a party, together the parties.

Section 1: Purpose

The purpose of this Agreement is to set forth the terms and conditions by and between the parties for the provision by Alpha of certain Alpha Voice communications services (the “Service”), which includes, but is not necessarily limited to, calling plans, services, all optional features and related services, and all related fees, charges, and surcharges (collectively, “Fees”) to Customer.  The parties explicitly agree to the terms of this Agreement, as more fully set forth herein.

Section 2: Term and Termination

The Agreement Term consists of the Initial Term and any Renewal Terms as defined herein. The Initial Term is defined as the time period from the Effective Date of this Agreement for a period of the term stated in the MSA.  Upon expiration of the Initial Term, this Agreement shall automatically renew for additional one (1) year Renewal Terms, unless written notice is given by Customer to Alpha at least sixty (90) days prior to the end of the then-current Renewal Term.

Either party may terminate this Agreement for any material breach of any part of the Agreement by the other party, without any penalty, liability or fees (except for immediate (i) payment of then-due Fees and (ii) return and forfeiture of all purchased equipment for which full payment has not been made).  Unless otherwise mutually agreed in writing as to any matter of a non-material breach, any non-material breach of this Agreement must be cured within thirty (30) of receipt of notice from the non-breaching party, describing the reasons for asserting such breach, or the non-breaching party may terminate this Agreement, without penalty, subject to Customer’s immediate (i) payment of then-due Fees and (ii) return and forfeiture of all purchased equipment for which full payment has not been made.

Alpha represents and warrants that it shall use commercially reasonable efforts to provide the Service in a timely and workman-like manner, and to promptly correct any failures, delays, interruptions, errors, omissions, or degradations of voice quality (collectively, “problems”) related only to the Service provided by Alpha hereunder, except for problems reasonably beyond Alpha’s control.

Section 3: Initial and Ongoing Service Fees

The details of the Service and applicable Fees, effective as of the Effective Date, are contained in one or more Quotes attached hereto, and in Alpha’s rate sheets, as may be updated from time to time by Alpha, in its sole discretion, and which are made part of this Agreement by reference.  The Customer’s initial payment for the Service shall include activation fees for selected devices, equipment cost, first and last month’s line charges and monthly access fees, and the cost of the phones and other phone and data equipment chosen. On subsequent months, the Customer will be charged the ongoing monthly line charges and monthly access fees, the cost of any flex lines used during the previous month, additional minutes usage above the allotted monthly minute usage plan and for any international calls not included in the calling plan (package of minutes included in the plan). The package of minutes included in the plan only covers local and long-distance calls within the 48 contiguous United States of America and calls out of the covered area are subject to additional minute usage charge according to Alpha Voice calling rates.  The Alpha Voice standard rates may be found in Alpha’s rate sheets, service descriptions, and the like, copies of which are available from your assigned customer relationship manager.

Section 4: Payment Terms

Upon service delivery date, Alpha issues two invoices, the first for the initial setup fees and the second for the monthly Service fees (collectively, the Fees, as defined herein). The first monthly Service bill includes the prorated partial month Service charges from the service turn-up date up to the end of the current month PLUS Full-Service charge for the last month of the contract term exclusive of any overage charges which will be billed later. The two initial invoices are due immediately upon Service turn-up. Alpha issues invoices for the monthly Service on the first day of each month. If the Customer chooses to pay for the Service by credit card, all charges will be automatically deducted. Additional call charges and any other applicable charges are billed subsequent to the end of each month’s Service. It is the Customer’s responsibility to maintain a sufficient unused balance on the provided credit card account to allow for settlement of charges.

If the Customer chooses to pay for the Service by check, the Customer is responsible for immediate payment of invoices. Payments must be received within thirty (30) days from the invoice date, or the account is deemed delinquent. Alpha reserves the right to interrupt all Services for delinquent accounts, to charge late fees, finance charges, processing fees of forty-five dollars per month ($45/month) for delinquent accounts, and, if Services have been suspended, reinstatement fees of eighty-five dollars ($85) per incidence of such suspension.  Returned checks may result in a $35 returned check charge being applied to the Customer’s account balance.

You understand and agree that You are responsible for monitoring and maintaining your accounts within all plan-specified usage limits. In the event your usage exceeds these limits for your account, Alpha’s charges for such excess usage will appear on your invoice.  Alpha may also increase the limits for your account and charge you accordingly for future periods of service. Usage and associated charges for excess usage shall be determined based solely by Alpha’s statistical information. Unused monthly allotments shall not accrue, accumulate, or carry over from one month to any other month.

Section 5: Local Area Telephone Numbers

Local area telephone numbers are assigned according to the proximity and number availability of the address the Customer provides to Alpha.  However, it is the Customer’s responsibility to confirm whether the number(s) are in the local calling area of the callers the Customer intends to reach with the Service. Alpha assumes no responsibility or liability for any Customer advertising cost losses due to a number not being located within the local area of callers to the Service.

Section 6: 911 Calls from Softphones

Customer understands and agrees that it is Customer’s sole responsibility to provide Alpha the Customer’s current service address for each of Customer’s telephone sets covered by the Service.  Alpha shall have no liability for calls to 911 which are misdirected, or which fail to connect, due to errors in the service address provided by Customer for any such telephone set.

Section 7: Lawful and Appropriate Use

Customer shall use the Service solely for lawful and appropriate purposes as provided herein, and Customer hereby agrees to indemnify and hold Alpha harmless from any and all claims, damages, losses or liabilities of any nature whatsoever arising out of or concerning the Customer’s unlawful use of the Service provided herein or Customer’s gross negligence or willful misconduct. In the event that Alpha is brought into or required to respond to any action arising from or concerning Customer’s unlawful use of the Service provided herein, the Customer agrees to indemnify and hold Alpha harmless and to pay all arbitration, court and attorney’s costs and fees.

Alpha hereby agrees to indemnify and hold the Customer harmless from any and all claims, damages, losses or liabilities of any nature whatsoever arising out of or concerning Alpha’s own gross negligence, unlawful acts, or willful misconduct in the provision of Services provided herein. In the event that the Customer is brought into or required to respond to any action arising from or concerning Alpha’s own negligence, unlawful or willful misconduct in the provision of the Service provided herein, Alpha agrees to indemnify and hold the Customer harmless and to pay all arbitration, court and attorney’s costs and fees.

Alpha reserves the right to immediately discontinue, disconnect, limit, suspend, terminate, or revoke the Service with reasonable notice to the Customer should the Customer, at the sole discretion and determination of Alpha, cause or allow any type of activity or load which is incompatible with Alpha network, causes quality of service issues, impairs the ability of Alpha to maintain or provide service to other customers.  Customer agrees that Alpha shall not be liable for any direct, indirect, or consequential damages resulting from a decision to discontinue, disconnect, limit, suspend, terminate, or revoke the Service with or without prior notice to Customer.  In any such case, however, Customer shall remain liable for payment of any then-due Fees.

Notwithstanding the forgoing, Alpha will (1) fully cooperate with law enforcement authorities having jurisdiction, presenting a proper request for information, including, but not limited to subpoena, summons, or other court order,  regarding Customer’s use of the Service, including, but not limited to, the provision of end-user or subscriber information, call data records, and the like.  If permitted by the court order, applicable statute, and applicable regulations, Alpha will advise Customer of the issuance of the court order and Alpha’s response; and (2) promptly report to applicable authorities any evidence of suspected or actual abuse of the Service for illegal or otherwise prohibited purposes.

Section 8: Limited Warranty; Exclusions

Unless otherwise mutually agreed in writing, Alpha will not provide support for customer premise equipment, such as, by way of example, telephone desk or wall phones, purchased directly by Customer from a manufacturer or third-party reseller – warranty and non-warranty support in this circumstance is solely between Customer and such manufacturer or reseller.  Unless otherwise mutually-agreed in writing, Alpha will pass on to the Customer any applicable manufacturer’s warranty with respect to such equipment purchased directly from Alpha, and support will be between customer and the manufacturer.

EXCEPT AS PROVIDED ABOVE, ALPHA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, ALPHA DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OMISSION, DEGRADATION OF VOICE QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. ANY CLAIM AGAINST ALPHA   MUST BE MADE WITHIN ONE YEAR OF THE EVENT GIVING RISE TO THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER, AND ALPHA SHALL HAVE NO LIABILITY THEREAFTER.

Section 9: Limitation of Liability

The Service, although reliable, is not guaranteed. Alpha PROVIDES SERVICES AS IS AND WITH ALL RISKS. YOU EXPRESSLY AGREE THAT USE OF THE Alpha SERVICES IS AT YOUR SOLE RISK. Alpha its agents, affiliates, vendors and the like do not represent or warrant that the Services will be uninterrupted or error free; neither do they make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through the Services. Alpha expressly disclaims the warranties of merchantability and fitness for a particular purpose and all warranties not expressly contained in this Agreement. You and Alpha agree that the terms of this Agreement shall not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement, unless both parties agree to amend this Agreement in accordance with Section 20: Amendments. Alpha reserves the right to interrupt the Service for maintenance and systems upgrades at its discretion and agrees to provide reasonable prior notice to the Customer. You agree that Alpha’s total liability and your sole remedy for any occurrence of non-accessibility to the Services or other downtime is limited to refunding hosting fees for one month and in no event shall the Alpha liability exceed the total aggregate amount of monthly hosting fees for one month paid by You to Alpha under this Agreement, including all fees, attorney fees, and costs.

Alpha shall not be liable for any delay in the Service or performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, power failure, equipment failure, interruption of broadband or high-speed internet access, late delivery by suppliers, or other causes beyond the reasonable control of Alpha.

IN NO EVENT SHALL Alpha. BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE OR EQUIPMENT PROVIDED HEREUNDER, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, EVEN IF ALPHA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. 

Section 10: Proprietary Rights; Restrictions

It is specifically understood and agreed that the Service and all programs and formats associated with the Service provided under this Agreement are Alpha’s or its suppliers’ and partners’ proprietary materials and information. It is also specifically understood and agreed that the Customer shall not, and shall not permit or encourage others to, without the prior written approval of Alpha copy, duplicate, communicate, disclose, modify, adapt, decompile, reverse engineer, disassemble, prepare derivative works of, or attempt to derive source code from the Service or any programs or formats associated with the Service covered by these Terms and Conditions.

Section 11: Changes to Service and Terms and Conditions

Alpha reserves the right to make changes to these Terms and Conditions or to the Service, including, but not limited to, the Fees thereof, as a result of changes in applicable regulations or for other reasons in Alpha’s sole and reasonable discretion. In the event of such changes, Alpha promptly will make the rates available to Customer upon request.  It is Customer’s responsibility to periodically make a request to their customer relationship manager for changes or updates to the Fees.  In the event that Customer reasonably objects to any such change, the parties agree to use good faith and commercially reasonable efforts to come to a mutually-acceptable solution.  In the event that a mutually-acceptable solution is not present, Customer may terminate this Agreement terminate this Agreement, subject to Customer’s immediate (i) payment of all Fees due for the remainder of the Term and (ii) return and forfeiture of all purchased equipment for which full payment has not been made.

Section 12: Customer’s Trademarks, Logos, Etc.

Customer specifically agrees that Alpha may identify Customer as a customer of Alpha and may include the Customer’s name and any applicable logo in Alpha marketing materials that identify Alpha customers, without further approval by Customer. Except for the forgoing, the parties understand and agree that all web sites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively, “Marks”) of the parties are and shall remain the exclusive property of such party and nothing in this Agreement and in these Terms and Conditions shall grant either party or any other third-party providing service under these Terms and Conditions the right to use, or license to use, such Marks. 

Section 13: Governing Law and Venue

These Terms and Conditions shall be governed by the laws of the State of West Virginia and any disputes or controversy arising hereunder shall be arbitrated or adjudicated in Putnam or Kanawha County, State of West Virginia, without regard to its conflict of law provisions. The Customer hereby consents to personal jurisdiction for all claims of any nature concerning the Customer and Alpha in Putnam or Kanawha County, West Virginia, and specifically consents to service of process being effectuated by certified mail at the Customer’s address. In the event that any action is brought to enforce or construe any of these Terms and Conditions, or for the breach of these Terms and Conditions, or concerning the indemnification clause contained herein, the prevailing party shall be entitled to recover, in addition to all other damages, reasonable attorney’s costs and fees. 

Section 14: Taxes 

Alpha shall not be liable for any taxes or other governmental fees and assessments to be paid which are related to purchases made from Alpha. You agree that You shall be solely responsible for all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of services provided to you by Alpha.

Section 15: Entire Agreement

This Agreement, including the referenced Quotes and service descriptions, which are subject to change by Alpha in its sole discretion, constitutes the entire understanding and the entire agreement of the parties with respect to its subject matter and supersedes all prior understandings or agreements, whether written or verbal, regarding such subject matter.

Section 16: Amendments

From time to time, Alpha and Customer may mutually agree to amend any part of this Agreement. Such amendment must be in writing and signed by both parties.  Such Amendment shall only apply to the subject matter of the Amendment, and all other provisions of the Agreement shall remain in full force and effect.  In the event of a conflict between the Agreement and any Amendment, the provisions of the Amendment shall prevail with respect to the subject matter thereof.

Exhibit H

Circuit Terms & Conditions

These Circuit Terms and Conditions (these “Terms”) shall govern the delivery, by Alpha Innovations (“Alpha”) to the customer (“Customer”) of, as identified in the Quote or attached specification sheet (“Spec Sheet”), certain telecommunications, installation, and maintenance services as more specifically set forth on the Spec Sheet (collectively “Services”) as well as certain issues pertaining to certain equipment listed, or to be listed, on the Spec Sheet (the “Equipment”). Together these Terms and the Spec Sheet are a material part of the Agreement to which these are attached, and of which are made part, and shall be incorporated into and be made a part of, the Agreement. In the event of a conflict between these Terms and the Agreement to which these are attached, and of which are made part, the terms of these Terms shall apply with respect to the subject matter thereof.

1. Services; Infrastructure; and Equipment.

A. Description of Services; Regulation. From and after the Services Commencement Date (defined below) until the termination of the Agreement, Alpha will provide, according to the terms and conditions set forth in these Terms, the Services. This Agreement shall cover only the Services and Alpha shall not be responsible for any of Customer’s other telecommunications connections or other technology services of any kind. Should the Federal Communications Commission (“FCC”) or the Public Service Commission (“PSC”) assert, or should Alpha determine, that the Services are subject regulation by the FCC or PSC (including but not limited to tariff, price schedules, or other regulation), this Agreement may be amended by Alpha to comply with applicable law or may be cancelled or terminated unilaterally by Alpha without penalty. Customer acknowledges and agrees that (1) the Services may be subject to the terms, conditions and restrictions contained in any applicable agreements (including software or other intellectual property license agreements) between Alpha and Alpha’s vendors, and (2) the Services may include, as determined to be necessary in Alpha’s sole determination, third-party circuits or other services necessary to establish and provide the Services, and in the event of the early termination of this Agreement Alpha shall have the right to recoup from Customer some or all of Alpha’s expenses and fees for which it is obligated to such third parties.

B. Equipment. Alpha will provide and install, prior to the Services Commencement Date, and maintain thereafter during the pendency of the Agreement, all according to the terms and conditions set forth in these Terms, such Equipment as Alpha deems necessary to provide the Services. Alpha shall, at all times, maintain all rights, title, and interests in and to the Equipment. Upon the termination of the Agreement for any reason, Customer shall permit Alpha access to its facilities or site to remove any Equipment installed at Customer’s or Customer’s designated site. This Agreement shall cover only the Equipment and Alpha shall not be responsible for any of Customer’s other equipment, software, telecommunications connections, or other technology of any kind. Customer and Alpha agree that the Equipment may not be fully described on the Spec Sheet until the Services Commencement Date, but that the later addition of the Equipment list shall not impact the enforceability of this these Terms generally or specifically as it pertains to the Equipment.

C. Infrastructure. Alpha will provide, maintain and repair the communication system (consisting of conduits, cables, fibers, lines, wires, interconnections, terminals, devices, boxes, and equipment) necessary to provide the Services (the “Infrastructure”), up to and including the point at which the Infrastructure is made available for connection to Customer’s premises, equipment, or wiring. The Infrastructure shall remain the sole and exclusive property of Alpha at all times. This Agreement shall not give Customer any property interest in the Infrastructure whatsoever and Customer specifically disclaims any interest therein. Alpha may manage the Infrastructure in the exercise of its discretion and reserves the right to alter the Infrastructure at any time. Alpha will provide reasonable notice prior to any scheduled maintenance or upgrades which may result in a disruption of the Service. However, Customer acknowledges that Alpha may not always be able to provide notice of maintenance of the Infrastructure, especially in instances of emergency. Alpha will use commercially reasonable efforts to provide Customer with prior notice of emergency maintenance but will at least provide notice concurrent with such emergency maintenance. Customer shall not alter, repair, or reconfigure the Infrastructure in any way. Any damage to, adaptation of, or alteration of, the Infrastructure by Customer shall be a material breach of this Agreement.

D. Use Limitation. Customer and its employees, as well as individuals/entities with the written permission of an authorized representative of Customer, shall be the only permitted end-user of the Services and Equipment. Customer shall comply with all applicable end user software and hardware license agreements used in the provision of the Services, and shall not resell or bundle the Services, nor permit any third party to access the Services.

2. Fees; Payment Terms.

A. Fees and Taxes. All applicable taxes, fees, duties, surcharges and other assessments of any kind (“Taxes”) that Alpha is required by applicable law to collect or withhold shall be charged to Customer over and above the fees and charges set forth in the Quote or in the Spec Sheet. Customer shall remit all such Taxes at the same time as it remits each payment. Customer shall, at all times and regardless of whether Alpha mistakenly omits Taxes from any invoice, be solely responsible for Taxes, and all related penalties and interest if any. Should the Services be, or become, subject to government regulations related to pricing, surcharges, Taxes, or fees that do not currently exist, Customer shall be responsible for such additional charges.

B. Additional Fees. In addition to the fees set forth on the Quote or Spec Sheet, Customer will further reimburse Alpha for all costs incurred for installation, maintenance and repair of the Equipment or Infrastructure if: (i) either is altered, maintained or repaired by any party other than Alpha, or (ii) any malfunction of the Services as the result of mishandling, abuse, misuse, improper operation of any of the Equipment or Infrastructure.

C. Early Termination. Alpha will incur substantial costs in activating the Services and acquiring the Equipment. In the event of a termination of this Agreement by Customer for any reason, other than as set forth herein, Customer shall pay to Alpha all remaining recurring fees for the Services as set forth on the Quote or Spec Sheet.

3. Customer’s Obligations. The delivery of the Services by Alpha is contingent upon Customer fulfilling the responsibilities set forth in this Section. Any failure or delay in fulfilling and maintaining these responsibilities during the term of the Agreement shall suspend, automatically, Alpha’s obligation to provide the Services. Continued failure of Customer to deliver the requirements of this Section within ten (10) days following the delivery by Alpha of written notice of such failure may result in the termination of this Agreement by Alpha.

A. Property Access; Installation and Maintenance Rights. Customer shall provide, or will secure from Customer’s landlord, co-tenants, lenders, lien holders, or other parties whose consent is required, all necessary rights, permissions, easements, waivers, and other necessary forms of consent for Alpha to install, test, operate, maintain, upgrade, replace, and remove the Infrastructure on Customer’s property (or that of Customer’s landlord, cotenant, or other third parties as the case may be) as Alpha may reasonably require from time to time during and after the term of this Agreement.

B. Physical Attributes. Customer will provide, or shall secure from Customer’s landlord as the case may be, (i) suitable building facilities (including but not limited to space, circuitry, power, backup power, surge protectors, environmental conditions, ducting, conduit, structural borings for cable and conductors in floors, ceilings and walls, electrical service with suitable terminals and power surge protection devices, and electrical grounding) for the installation, operation, and maintenance of Equipment and Infrastructure in accordance with Alpha’s installation standards; and (ii) a safe working area that complies with all local safety standards and regulations. Customer is responsible for providing equipment compatible with the Equipment, the Service, and the Infrastructure, as well as any wiring required to extend the Service within the Customer’s site.

C. Security; Data Redundancy. Customer is solely responsible for the selection, implementation and maintenance of security features for protection against unauthorized or fraudulent use of the Services. Customer shall be solely responsible for management and adequacy of its data backup, data recovery, and disaster recovery measures and policies. Customer expressly releases Alpha for any losses or claims incurred by or made against Customer or Alpha as a result of Customer having failed to adequately backup its data, provide for disaster recovery, or adequately secure its systems. iv. Applications. Customer shall bear all responsibility for ensuring that any applications that Customer seeks to operate utilizing the Services work with the Services. Alpha shall have no responsibility for the viability of applications or the use of applications with the Services. v. Licenses. Customer shall obtain, and hereby represents and warrants that it has obtained, any and all permissions and/or licenses from third parties necessary for Customer’s use of the Services (or Alpha’s set up of the Services), and hereby grants Alpha all necessary licenses for Alpha to successfully initiate the Services.

4. Compliance With Applicable Law. Customer’s use of the Services and Equipment shall comply with all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction and Customer will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities with respect to such use.

5. Indemnification. In addition to, and not in limitation of, any other obligations of Customer under this Agreement, Customer, at its sole expense, shall be liable for and shall indemnify, hold harmless and (at the election of Alpha) defend (with counsel reasonably acceptable to Alpha) Alpha, its affiliates, and their respective directors, officers, members, partners, employees, agents and representatives, from and against any and all debts, liabilities, losses, costs and expenses, including reasonable attorneys’ fees (collectively, “Losses”), to the extent arising out of or in any way related to, in whole or in part, in connection with: (i) Customer’s breach of this Agreement; (ii) Customer’s negligence or willful misconduct (including but not limited to negligence or willful misconduct resulting in damage to the Equipment); (iii) use of the Services, including but not limited to the content of communications transmitted thereby; (iv) any infringement or misappropriation of any intellectual property or proprietary rights arising out of the use of the Services or any data stored, downloaded, accessed, transmitted or otherwise processed using the Services; (v) any bodily injury, death or property damage caused by Customer or anyone within its control, (vi) any third-party’s alleged ownership or possessory interest, lien, trust, pledge, or security interest in the Infrastructure or any Equipment or any customer data, including any attempt by such third party to take possession of any part of the Infrastructure or any Equipment; or (vii) any third party claims resulting from Alpha’s installation, testing, operation, maintenance, upgrading, replacement, or removal of the Infrastructure on Customer’s property (or that of Customer’s landlord, cotenant, or other third parties as the case may be); in each case other than for Losses resulting from Alpha’s fraud, gross negligence or willful misconduct. Alpha shall notify Customer within 30 days after Alpha becomes aware, of any matter with respect to which Alpha or any other person indemnified hereunder is entitled to seek indemnification from Customer under this Section; provided, however, that any failure to give prompt notice of such matter shall not relieve Customer from any of its liabilities or obligations hereunder with respect to such matter unless (and then only to the extent that) such failure materially and adversely affects the ability of Customer to indemnify against (or if applicable, defend) any claim or action arising out of such matter. In the event that Alpha requests that Customer defend Alpha or any other Person indemnified under this Section with respect to any indemnified matter, Alpha or any such other person indemnified hereunder shall nevertheless have the right to participate in the defense with counsel of its own choice (with such counsel’s fees and expenses incurred after the date Customer initiates the defense to be paid by such indemnified person unless (i) in Alpha’s reasonable judgment, it is advisable in light of the separate interests of Alpha and Customer for Alpha or such other indemnified person to be represented by separate counsel or (ii) Customer shall not have employed counsel to defend Alpha or such other indemnified person within a reasonable time or fails to do so until the matter is resolved; in either such case, the fees and expenses of such separate counsel shall be paid by Customer and to approve in writing (not to be unreasonably withheld, conditioned, or delayed) any settlement or compromise or any consent to the entry of any judgment that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified person of a release, reasonably satisfactory to such indemnified person, from all liability in respect of such matter and there shall be no other terms and conditions as part of such settlement, compromise, or consent to judgment which could reasonably be expected to materially and adversely affect any such indemnified Person. To the extent requested by Customer, Alpha agrees to reasonably cooperate with Customer and its counsel in connection with any such matter, provided that Customer shall reimburse Alpha for any expenses associated with the same. Each of Alpha and Customer shall use reasonable efforts to keep the other party informed at all times as to the status of its efforts with respect to any matter covered hereby and to consult with the other party concerning its efforts. This Section shall survive the termination of this Agreement.

Circuit and Telecommunications Services Terminology, Terms, & Conditions

Alpha will be supplying to the Customer a set of telecommunications services as described on a Quote over a Fiber Optic network. These services are comprised of several individual components that combine to equal the Services. Included below are some, but not necessarily all, of the terminology and related terms and conditions applicable to such services.

Ethernet Port (PORT): The physical connection from the Customer into the Alpha Technologies network. Alpha currently offers One (1) Gigabit per second and Ten (10) Gigabit per second ports into the Alpha Technologies Network.

Dedicated Internet Access (DIA): Internet services may be provided at the price indicated on the Services Agreement at a rate up to the physical port speed.

Ethernet Virtual Circuit (EVC): The customer can also utilize the Ethernet Port to establish a layer-2 Ethernet connection between two points, such as from the Customer’s location to the Alpha Technologies Datacenter.

E-LINE: E-Line is a point-to-point Ethernet service connecting exactly two (2) Ethernet Port’s with each other.

E-LAN: E-LAN is a multipoint to multipoint service consisting of three or more Ethernet Ports providing full-mesh connectivity between all connected sites.

Services Commencement Date. Customer acknowledges that the Infrastructure has not yet been completed and that, as of the date of this Agreement, Alpha is not yet in a position to deliver the Services. Alpha’s obligation to deliver the Services under this Agreement shall commence within 180 days of the date of the Quote Acceptance. The date that Services commence under this Agreement shall be known herein as the “Services Commencement Date.”

Excluded From Services. The following are expressly excluded from the Services to be provided under this Agreement, and should the Customer desire any of the following work, Customer shall be solely responsible for providing the same:

i. Security; Data Redundancy. Customer is solely responsible for the selection, implementation and maintenance of security features for protection against unauthorized or fraudulent use of the Services. Customer shall be solely responsible for management and adequacy of its data backup, data recovery, and disaster recovery measures and policies. Customer expressly releases Alpha for any losses or claims incurred by or made against Customer or Alpha as a result of Customer having failed to adequately backup its data, provide for disaster recovery, or adequately secure its systems.

ii. Applications. Customer shall bear all responsibility for ensuring that any applications that Customer seeks to operate utilizing the Services work with the Services. Alpha shall have no responsibility for the viability of applications or the use of applications with the Services.

iii. Licenses. Customer shall obtain, and hereby represents and warrants that it has obtained, any and all permissions and/or licenses from third parties necessary for Customer’s use of the Services (or Alpha’s set up of the Services), and hereby grants Alpha all necessary licenses for Alpha to successfully initiate the Services.

Exhibit I

COLOCATION AGREEMENT TERMS & CONDITIONS

1. DEFINITIONS. In addition to any capitalized terms defined elsewhere in this Agreement, the following capitalized terms used herein shall have the meanings specified in this Article:

1.1 Affiliates. “Affiliates” shall mean any Person controlling, controlled by, or under common control with, the Person in question.

1.2 Agreement Confidential Information. “Agreement Confidential Information” shall have the meaning given that term in Section 4.1.4.

1.3 Applicable Law. “Applicable Law” shall mean all applicable federal, state, foreign and other laws and all applicable rules, regulations, interpretations and orders of any relevant Authority.

1.4 Authority. “Authority” shall mean any governmental, judicial, legislative, executive, administrative, or regulatory authority of the United States, or any possession or territory thereof, or of any state, local, foreign or other government, of any other public or self-regulatory authority, commission, board, agency or other instrumentality.

1.5 Building. “Building” shall mean the building generally known as “Alpha Technologies Data Center” or “DC1” and located at 2020 Union Carbide, South Charleston, West Virginia 25304.

1.6 Chosen Courts. “Chosen Courts” shall have the meaning given that term in Section 12.4.

1.7 Data Center. “Data Center” shall mean the data center facility located at the Building, which is operated and controlled by Alpha, and at which Alpha shall provide the majority of the Services.

1.8 Dispute Period. “Dispute Period” shall have the meaning given that term in Section 3.3.

1.9 Force Majeure Event. “Force Majeure Event” shall mean any event beyond the reasonable control of a party including acts of God, fires, floods, vandalism, sabotage, war, terrorist action, riot, civil commotion, rebellion.

1.10 Initial Term. “Initial Term” shall have the meaning given that term in Section 9.1.

1.11 Losses. “Losses” shall have the meaning given that term in Section 8.1.

1.12 Person. “Person” shall mean an individual, partnership, joint venture, corporation, trust, Limited Liability Company, unincorporated organization, association, joint stock company, Authority, or any other form of association or entity.

1.13 Recipient. “Recipient” shall have the meaning given that term in Section 4.1.2.

1.14 Renewal Term. “Renewal Term” shall have the meaning given that term in Section 9.1.

1.15 Representative(s). “Representative(s)” shall mean individuals (inclusive of Subscriber employees and non-employee individuals) authorized by Subscriber in writing from time to time to have access to the Subscriber Cabinet(s) area; provided, that except as provided in this Section, all such individuals shall be employees or contractors of Subscriber or its Affiliates. Individuals who are not employees or contractors of Subscriber or its Affiliates may be Representatives only upon the written agreement of Alpha and Subscriber, which shall not be unreasonably withheld or delayed. In the event that Alpha withholds such agreement, Alpha shall, simultaneously with notice of such non-acceptance, provide a written explanation for the refusal. For the avoidance of doubt, the term “Representative” shall not include any individual who was previously authorized by Subscriber but with respect to whom Subscriber has notified Alpha in writing (including by email) that such individual is no longer authorized and who no longer remains on the most current list of Representatives provided to Alpha; provided, that Subscriber shall provide Alpha with at least one business days’ (or such commercially reasonable shorter period in case of emergency, including any failure of the Subscriber Systems to operate properly) prior written notice of any revocation of any Representative’s authority and/or any change to the list of Representatives.

1.16 Services Commencement Date. “Services Commencement Date” shall mean the date that the Services are accepted by the customer for purposes of beginning installation of Subscriber Systems or five (5) business days after Alpha notifies Subscriber of Service availability, whichever occurs first. Subscriber billing will begin on the Services Commencement Date.

1.17 Service Level Agreements (SLAs). “Service Level Agreements” or “SLAs” shall mean the specific performance standards and metrics applicable to the Services, as referenced in Section 5.1 of this Agreement and listed in Attachment B to this Agreement.

1.18 Services. “Services” shall mean Alpha’s provision of equipment cabinet space, electrical power, air-conditioning for equipment cooling, telecommunications connectivity to Subscriber circuits, 1 to 1000Mb Alpha’s network connection, delivery of data to the Subscriber Systems and all other services to be provided by Alpha pursuant to and in accordance with this Agreement.

1.19 Special Damages. “Special Damages” shall have the meaning given that term in Section 11.1.

1.20 Specifications. “Specifications” shall mean the services description as defined in Attachment A.

1.21 Subscriber Cabinet. “Subscriber Cabinet” shall have the meaning given that term in Section 2.2.2.

1.22 Subscriber Systems. “Subscriber Systems” shall mean any equipment that is wholly owned or leased by Subscriber or otherwise provided to Subscriber for its own use to be installed in the Subscriber Cabinet.

2. SERVICES

2.1 Pre-Services and Initial Installation.

2.1.1 Following the Effective Date but prior to the Services Commencement Date, Alpha shall conduct the following work to prepare to provide the services:

2.1.1.1 Alpha will prepare the number of Subscriber Cabinets as indicated in Attachment A for Subscriber and make Subscriber Cabinets ready for the installation of Subscriber Systems by Subscriber.

2.1.1.2 Alpha will install and test all Internet and other network connections as described in Attachment A.

2.1.1.3 Alpha will install and test electrical service to each Subscriber Cabinet consistent with the descriptions in Attachment A.

2.1.2 Alpha will prepare individual access cards for (i) each of Subscriber’s Representatives to be provided on the Services Commencement Date, contingent upon the receipt of adequate contact details and portrait photo for photo identification access cards for each of Subscriber’s Representatives at least five (5) days prior to the Services Commencement Date, or (ii) within five (5) days after such later date as adequate contact details and portrait photo for photo identification access cards for additional Subscriber’s Representatives are received.

2.2 Services at Data Center.

2.2.1 General. Subscriber shall not deliver to or install in the Data Center any equipment or other materials reasonably likely to harm the Data Center, Alpha’s equipment, networks or systems or third party equipment, networks or systems. Subscriber shall be responsible for all costs and expenses associated with the delivery to and installation in the Data Center of any Subscriber Systems. Alpha shall use commercially reasonable efforts to have the Building’s commercial standard loading docks made available to Subscriber to permit Subscriber to deliver and remove, as necessary, the Subscriber Systems to and from the Subscriber Cabinet. No other equipment is available for use by Subscriber and it shall be Subscriber’s sole responsibility to supply any equipment necessary to deliver and install any Subscriber Systems (other than for the Initial Installation). Subject to Subscriber’s compliance with the terms of this Agreement, the Representatives shall be permitted access to the Data Center and the Subscriber Cabinet on a 24-hour, seven day a week, 365 day basis, as necessary to deliver, install, operate, monitor, maintain, repair, replace and/or remove any or all of the Subscriber Systems.

2.2.2 Subscriber Cabinet. Alpha shall provide and maintain the cabinet space, racking and dimension requirements listed on Attachments A to this Agreement, for the Subscriber Systems, within the Data Center (the “Subscriber Cabinet”). The Subscriber Cabinet shall be suitable, as reasonably determined by Alpha, for the proper storage and operation of the subscriber Equipment. In the event that from time to time after the Services Commencement Date, Subscriber requires changes to space, communication or electrical conversions or other requirements in connection with any of the Subscriber Systems, Subscriber shall notify Alpha of the same and Alpha shall review such request and within Five (5) business days after receipt of such request shall make a reasonable determination regarding whether it is able to accommodate such additional requirements, taking into account such factors as the space, power consumption and infrastructure support implications of such additional requirements. If Alpha is able to accommodate such additional requirements, Alpha shall within five (5) business days after the receipt of such request provide Subscriber with a proposed schedule and budget, in reasonable detail, indicating the timetable for and cost of such additional requirements. In the event that Subscriber agrees in writing to such timetable and costs, Alpha shall provide such additional requirements in accordance with such mutually agreed schedule and budget. Other than for access required by authorized Alpha employees or contractors in order to perform Alpha’s obligations under this Agreement, or as may be required by Applicable Law or legal process, Alpha shall not permit any Person other than a Representative to have access to any of the Subscriber Systems or any portion of the Subscriber Cabinet. Notwithstanding the foregoing, Alpha may inspect and following a commercially reasonable effort to give notice to Subscriber may remove or disable any equipment in the Subscriber Cabinet that it reasonably believes is unsafe or harmful to the Data Center, Alpha’s equipment, networks or systems or third party equipment, networks or systems. Subscriber will use the Subscriber Cabinet only for the purposes of installing, marketing, operating, monitoring, maintaining, repairing, replacing and/or removing the Subscriber Systems.

2.2.3 Fire Protection. Alpha’s fire protection measures maintained at the Data Center shall be in accordance with customary industry standards. Such measures maintained by Alpha shall, at a minimum, be compliant with requirements set by applicable city ordinances, building codes, and any other applicable rule or ordinance related to fire safety and prevention. Alpha shall provide such inspection, testing, and maintenance of the fire suppression systems as are reasonably necessary to assure satisfactory performance in the event of an emergency.

2.2.4 Security Protection. Alpha shall be responsible for developing and maintaining physical security measures for the Data Center and for the Subscriber Cabinet that define specific requirements in regard to monitoring controls and procedures assigned for the security and safety of the Subscriber Systems and are consistent with customary industry standards. If at any time Alpha becomes aware that any of the security measures in place for any portion of the Data Center or any portion of the Subscriber Cabinet are compromised or otherwise violated or may be inadequate, Alpha shall provide notice of such event as soon as reasonably practicable to Subscriber in accordance with such notification and escalation call lists as Subscriber shall have, from time to time, provided to Alpha. In the event of a breach of the security measures, upon reasonable request, Alpha shall permit Subscriber to inspect the automatic security logs within twenty-four (24) hours following the receipt of such notice.

2.2.5 Ownership of Items. Alpha warrants and agrees that (i) Subscriber shall retain all right, title and interest (or leasehold or license interest, as applicable) in and to the Subscriber Systems, (ii) Alpha shall have no right, title or interest (ownership or otherwise) in any of the Subscriber Systems, and (iii) Alpha shall have no right to grant a security interest in or otherwise encumber any of the Subscriber Systems; provided, that Alpha shall be permitted to take a lien on any Subscriber’s Systems to the extent Subscriber fails to make any payment owed by Subscriber to Alpha or any of its Affiliates hereunder in accordance with the terms of this Agreement.

2.2.6 Liens. Subject to Section 2.2.5, Alpha shall not cause (or allow any Person under its direction or control to cause) any of the Subscriber Systems, or any interest therein, to become subject to any Lien, other than any Lien imposed by Subscriber.

2.2.7 Notice of and Liability for Loss. Without limiting, if at any time Alpha becomes aware that any of the Subscriber Systems have been lost, damaged, destroyed or come into the possession of a third party and such possession is not in accordance with this Agreement, Alpha shall provide notice of such event to Subscriber as soon as reasonably practicable. Subject to but notwithstanding Section 11.4, Alpha shall be liable for repair and/or replacement costs relating to the Subscriber Systems in the event of any loss, damage or destruction to the Subscriber Systems caused by (i) the gross negligence of or willful misconduct of Alpha or any of its agents or representatives or (ii) a breach by Alpha of Section 2.2.3 or Section 2.2.4.

2.2.8 Investigations. Alpha agrees to reasonably cooperate with any reasonable investigation by or on behalf of Subscriber or its insurers relating to any loss, damage, destruction or unauthorized use of any of the Subscriber Systems during the Term. Alpha further agrees to reasonably cooperate with Subscriber in any litigation or prosecution against a third party arising in connection with any loss, damage, destruction or unauthorized use of any of the Subscriber Systems during the Term. Subscriber shall reimburse Alpha for its reasonable out of pocket expenses associated with any such cooperation, unless it is determined that the loss, damage, destruction or unauthorized use was the responsibility of Alpha under this Agreement.

2.2.9 General Representations, Warranties and Covenants.

2.2.9.1 Ability To Pay/Security Deposit. Upon request, Customer shall provide Alpha with information reasonably requested by Alpha to determine Customer’s ability to pay. A security deposit equivalent to two months of monthly recurring fees as set out in any quote or statement of work executed by the parties pursuant to this Agreement may be required to accompany such quote or statement of work. The security deposit shall be applied to the last two months of Services with any short fall or overage adjustment applied to the last month of Services. In the event of a breach of this Agreement by Customer, Alpha shall, without limiting its remedies otherwise available, have the right to apply the deposit to the damages suffered by Alpha as a result of such breach.

2.2.9.2 Subscriber represents, warrants and covenants that (a) it has the legal right and authority, and will continue to own or maintain the legal right and authority, during the term of this Agreement, to place and use any Subscriber Systems at the Data Center as contemplated under this Agreement; (b) the performance by Subscriber of its obligations and use by Subscriber of the Services will not violate any reasonable Data Center rules communicated to Subscriber from time to time in writing; (c) neither Subscriber nor the Representatives or the Subscriber Systems shall unreasonably, negligently or intentionally interfere with Alpha’s or its customers’ use of any services provided at or from, or equipment located at, the Data Center or the Building; (d) all equipment, materials and other tangible items placed by Subscriber at the Data Center shall be used in compliance with all applicable manufacturer specifications regarding safety; (e) Subscriber shall not, without the prior written consent of Alpha, resell the Services to any third parties (provided that this shall not be construed to prohibit Subscriber from allowing its Affiliates and the respective owners or employees of Subscriber and its Affiliates from using the Services in the ordinary course of the business of Subscriber or its Affiliates); (f) Subscriber shall, at its own expense, keep the Subscriber Systems in good repair, appearance and condition, other than normal wear and tear; and (g) Subscriber shall not knowingly permit the transmission of any material in violation of any applicable laws, rules or regulations by or through the Subscriber Systems.

2.2.10 Additional Services. Alpha shall provide to Subscriber the products and services described on Attachment A. No additional Services are included as part of this agreement. Alpha may provide additional services on a separate agreement or in an amendment to this Agreement.

3. INVOICING; PAYMENT TERMS

3.1 Pricing and Fees. All fees, charges and expenses relating to the performance of the Services are set forth on Attachment A to this Agreement. Except as provided in Section 3.2, no fees, charges or expenses relating to the performance of the Services shall begin accruing until after the Services Commencement Date. The parties agree that pro-rata billing for the Services shall begin on the Services Commencement date.

3.2 Certain Expenses. Prior to the Services Commencement Date, Subscriber shall pay or, as applicable, shall reimburse Alpha for all third party expenses (including any expenses incurred as a result of any requests of Subscriber and not as a result of the provision of the Services generally by Alpha to its customers) that (i) are reasonably necessary in connection with the Services to be provided prior to the Services Commencement Date and (ii) are, with respect to any expenses in excess of $100.00, approved by Subscriber in advance in writing, provided that (x) prior to the Services Commencement Date, Alpha shall be responsible for all normal recurring operating costs that Alpha otherwise would have had to have paid notwithstanding the provision of the Services, and (y) at all times, Alpha shall be responsible for the costs of its own employees incurred in providing the Services, and Alpha hereby agrees to utilize, to the extent reasonably practicable, its own employees to perform all actions related to the Services. Alpha shall not be in breach of this Agreement if it is unable to provide the Services or if it is delayed in doing the same because Subscriber has refused to approve a third party expense reasonably necessary in connection with the Services.

3.3 Payment Terms. See Exhibit A Section 2.

4. CONFIDENTIAL INFORMATION.

4.1 Confidential Information.

4.1.1 Definition. For purposes of this Agreement, subject to Section 4.1.3(a), “Confidential Information” means any information or materials disclosed by, or on behalf of, either party or any of its Affiliates to the other party or any of its Affiliates in connection with this Agreement that is marked or otherwise designated “confidential” or “proprietary” or the like, or that, due to the nature of such information or materials or the circumstances surrounding such disclosure, should reasonably be considered to be confidential or proprietary in nature. Notwithstanding the foregoing, subject to Section 4.1.3(a), Alpha agrees that all information or materials with respect to any of the Subscriber Systems, the network design or other layout or architecture with respect thereto, or data feeds or other connections with respect thereto, or any transactions effected utilizing any of the Subscriber Systems, are the Confidential Information of Subscriber, regardless of the source of such information or materials and regardless of whether or not marked or otherwise designated as “confidential” or “proprietary” or the like.

4.1.2 Confidential Treatment.

(a) Each party shall treat as confidential all of the Confidential Information of the other party, and shall not disclose or use (and shall not permit any other Person to whom any Confidential Information of the other party or any Agreement Confidential Information is disclosed by, on behalf of, for the benefit of or at the request of such party (each a “Recipient,” which term shall also include the receiving party) to disclose or use) any of the Confidential Information of the other party except as expressly permitted under this Agreement. Without limiting the foregoing, each party shall use (and shall cause each other Recipient to use) at least the same degree of care that such party uses to prevent the disclosure or misuse of its own confidential information of like nature or importance, but in no event less than reasonable care, to prevent the disclosure or misuse of any Confidential Information of the other party. Subject to the foregoing, and except as may be specifically agreed from time to time by the parties, each party shall not, and shall not permit any other Recipient to, (i) communicate or disclose, directly or indirectly, any of the Confidential Information of the other party (or any portion thereof) to any Person (other than communications or disclosures by such party to employees or contractors of such party, but only to the extent that such employees or contractors have a need for such information in order to allow such party to exercise the rights specifically granted to such party by this Agreement or to carry out the obligations imposed on such party by this Agreement in accordance with the terms of this Agreement and have agreed in writing to confidentiality and limited use obligations as described in Section 4.1.6); (ii) use any Confidential Information of the other party (or any portion thereof) in any manner except as expressly contemplated by this Agreement; or (iii) take any other action with respect to the Confidential Information of the other party (or any portion thereof) inconsistent with the confidential and proprietary nature of such Confidential Information.

(b) Subject to Section 4.1.2(a), each party may copy and distribute to such of its employees and contractors as are reasonably necessary to fulfill its obligations or to exercise its rights hereunder, the Confidential Information of the other party; provided that each party agrees not to make (or permit any Recipient of such party to make) more copies or distributions of any Confidential Information of the other party than shall be reasonably necessary in connection with its permitted use thereof. Disclosure of any Confidential Information shall not be deemed to represent an assignment or grant of any right, title or interest in such Confidential Information

4.1.3 Exclusions.

(a) Confidential Information of a party shall exclude information that the receiving party can demonstrate: (i) is independently developed or conceived by the receiving party after the date of this Agreement without reference to or use of any Confidential Information of the other party; (ii) becomes known to the receiving party, without restriction, from a third party who the receiving party reasonably believes, after due inquiry, has the right to so disclose it; or (iii) was generally known or available to the public at the time it was disclosed or at a later time through no act or omission of the receiving party or any other Person who the receiving party reasonably believes, after due inquiry, had an obligation to keep such information confidential.

(b) The restrictions set forth in Section 4.1.2(a)(i) shall not apply to Confidential Information that is required to be disclosed by either party pursuant to an order or requirement of any Authority; provided, however, that such party shall provide prompt prior notice thereof to the other party describing in reasonable detail such requirement and all Confidential Information of the other party required to be so disclosed, and shall use reasonable efforts and cooperate with the other party at the other party’s expense to obtain a protective order or otherwise seek to prevent disclosure of such Confidential Information.

4.1.4 Confidentiality of Agreement. Each party agrees that the terms of, but not the existence of, this Agreement and any negotiations with respect to the same (collectively, the “Agreement Confidential Information”) shall be maintained as confidential and that such party shall not, unless agreed to in writing by the other party, disclose or reveal, directly or indirectly, any of such Agreement Confidential Information to any Person except (i) to the party’s or its Affiliates’ respective officers, directors, members, partners, managers, employees, attorneys or other professional advisors, or (ii) to any actual or potential investor in, or purchaser of, such party, to any actual or potential banks or other financing sources of such party, and to their respective attorneys or other professional advisors; but in each case only to the extent that such Persons have a reasonable need to know the same for purposes of such relationship and agree to maintain the confidentiality of the same, or (ii) to the limited extent necessary to enforce its rights, or perform its obligations, under this Agreement. The provisions of this Section 4.1.4 shall not, however, (i) prohibit any party from disclosing to any Person the fact that Alpha is providing certain Co-Location services to Subscriber, without further detail, or (ii) prohibit any party from disclosing any Agreement Confidential Information to the extent that such disclosure is required by Applicable Law, so long as the party seeking to disclose the same shall first have given prompt prior notice thereof to the other party describing in reasonable detail such requirement and all Agreement Confidential Information required to be so disclosed, and reasonably cooperates with the other party in its efforts, if any, to prevent or limit any such disclosure.

4.1.5 Cooperation. Each party agrees that, either upon learning of, or upon a showing by the other party of, any threatened or actual breach of the provisions of this or of any threatened or actual unauthorized use or disclosure of all or any portion of the Confidential Information of the other party (or all or any portion of any Agreement Confidential Information) by any Recipient or any Person to whom such party or any Recipient of such party made available such Confidential Information or Agreement Confidential Information, or in the event of any loss of, or inability to account for, any of such Confidential Information or Agreement Confidential Information or any such information or materials, such party shall, without limitation of any liability that such party may have hereunder with respect to such threatened or actual breach or such unauthorized use or disclosure, loss or inability to account, give notice thereof to the other party and shall cooperate as reasonably requested by the other party in conjunction with the other party’s efforts, if any, to seek appropriate injunctive relief or otherwise to prevent or curtail such threatened or actual breach or unauthorized use or disclosure, loss or inability to account or to recover such Confidential Information or Agreement Confidential Information.

4.1.6 Restrictions on Disclosure. Each party agrees that, to the extent it is permitted to disclose Confidential Information of the other party (or any Agreement Confidential Information) to any other Person (other than pursuant to Section 4.1.3(b), or the last sentence of Section 4.1.4), it shall do so pursuant to a written non-disclosure agreement containing terms at least as protective of Confidential Information and Agreement Confidential Information as those set forth in this Article (but with no further rights of disclosure and no rights of use on their own behalf).

4.1.7 Legends. Each party agrees that it will not remove, alter, deface or obscure any legends, notices, identifications or evidence of confidentiality, ownership, copyright, trademark or other proprietary or intellectual property rights, or any disclaimers of warranties, limitations of damages, or similar provisions, contained on or included in any of the Confidential Information of the other party, nor will such party allow any of its Recipients to do so. Each party shall (and shall cause its Recipients to) reproduce any such legend, notice, identification, evidence, disclaimer or similar provision on any reproduction or modification of any of the Confidential Information of the other party and shall promptly add (or remove) any such legend, notice, identification, evidence, disclaimer or similar provision to the Confidential Information of the other party as the other party may reasonably request from time to time

4.1.8 Return. Upon termination or expiration of this Agreement for any reason, upon request, each party promptly shall return to the other party all Confidential Information of the other party, including all copies of any thereof, under the possession or control of such party or any of its Recipients, or destroy or purge (or cause to be destroyed or purged) all systems and files of any such Person of any such Confidential Information. Upon request, each party shall promptly certify to the other party its compliance with this Section 4.1.8.

5. SERVICE LEVEL AGREEMENTS.

5.1 Service Level Agreements. Service Level Agreements will be as defined in Attachment B.

5.2 Effect of Failure to Perform to Service Level Agreements.

5.2.1 Liquidated Damages. The parties acknowledge and agree that, because of the unique nature of the Services contemplated by this Agreement, it is difficult or impossible to determine with precision the specific amount of damages that might be incurred by Subscriber as a result of a failure of Alpha to meet the Service Level Agreements. It is further understood and agreed by the parties that Subscriber shall be damaged by such failure of Alpha to meet the Service Level Agreements, that it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, that any credits that become payable under Section 5.1 are in the nature of liquidated damages, and not penalties, and are fair and reasonable under the circumstances, and that such payments represent a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from Alpha’s failure to meet the Service Level Agreements.

6. ACCESS AND SECURITY.

6.1 Data Center Access. Except with the advance written consent of Alpha and Subscriber, Subscriber’s access to the Data Center shall be limited solely to Subscriber’s Representatives, to each of whom has been issued an Alpha customer identification access card including a photograph of the Representative. Subscriber and its Representatives shall cooperate with and comply with all reasonable and published security and safety measures provided to Subscriber by Alpha from time to time, including the use of entry and exit logs and agreements, key cards, voice, photo, biometric or other personal identification recognition devices, and other mechanisms and devices for registering, tracking, and limiting access to the Data Center. The Representatives will comply with all Applicable Laws, with the standards and practices of the telecommunications industry and with all of Alpha’s reasonable and published security procedures, rules, requirements and safety practices provided in writing to Subscriber from time to time. Alpha reserves the right to revoke the entry privileges of any Representative at any time if the exercise of such right is reasonable, and Alpha shall use commercially reasonable efforts to notify Subscriber in advance of any such determination and to reasonably cooperate with Subscriber in an effort to remedy such situation and/or allow access by one or more replacement Representatives.

6.2 Relocation of Subscriber Systems. Alpha reserves the right to relocate the Subscriber Systems or the Subscriber Cabinet to another area of the Data Center or to another facility (in each case provided that such other area or facility meets the requirements of Sections 2.2.1, 2.2.2, 2.2.3 and 2.2.4 of this Agreement) upon one hundred and twenty (120) days’ prior written notice to Subscriber. Alpha shall be solely responsible for any costs and expenses incurred by Subscriber and Alpha in connection with any such relocation (except for any such relocation requested by Subscriber) and shall use commercially reasonable efforts, in cooperation with Subscriber, to minimize any interruption of the Services in connection with any such relocation. In the event of any system relocation to another facility under this Section 6.2, Subscriber may, with at least thirty (30) days written notice (provided to Alpha within ninety (90) days of Alpha’s written notice to Subscriber), terminate this Agreement.

6.3 Scheduled and Emergency Maintenance. Alpha shall conduct routine scheduled maintenance of the Data Center from time to time. If Alpha has a reasonable expectation that the scheduled maintenance will adversely impact the Subscriber Cabinet, Subscriber Systems, or Building access by Subscriber’s Representatives, Alpha shall notify Subscriber thereof no less than five (5) days prior to the date for such scheduled maintenance,. In the event that an urgent, mission-critical maintenance situation arises, Alpha shall immediately notify Subscriber if it will affect any portion of the Subscriber Cabinet or any of the Subscriber Systems. Any such emergency maintenance, not caused by the actions or omissions of Alpha, shall not constitute a breach of this Agreement. During such scheduled and emergency maintenance periods, Alpha shall use its commercially reasonable efforts to minimize interruption to performance of the Services. Subscriber agrees to reasonably cooperate with Alpha during scheduled and emergency maintenance periods.

7. INSURANCE

7.1 Alpha Minimum Insurance Levels. Alpha agrees to keep in full force and effect during the term of this Agreement (a) a broad form Commercial General Liability Insurance policy providing for coverage of at least one million dollars ($1,000,000.00) per occurrence, subject to an aggregate cap of two million dollars ($2,000,000.00), for bodily injury and property damage. In addition, Subscriber agrees to keep in full force and effect during the term of this Agreement a Worker’s Compensation Insurance policy in an amount not less than that required by Applicable Law and Alpha agrees to keep in full force and effect during the term of this Agreement a Worker’s Compensation Insurance policy consistent with the policy that Alpha maintains for its employees generally. Such policies (i) shall be written on an “occurrence” policy form and not on a “claims made” form; (ii) shall be primary and not contributory with the other party’s liability insurance, if any; (iii) shall provide for not less than thirty (30) days advance written notice to the other party from the insurer or insurers, if more than one, of any cancellation, nonrenewal, or material change in coverage or available limits of liability; and (iv) shall be issued by an insurance company with a rating of no less than A-V in the current Best’s Insurance Guide, or otherwise be acceptable to the other party, and admitted to engage in the business of insurance in the state in which the Services are actually provided. Alpha’s Commercial General Liability Insurance coverage may be provided by a combination of primary, excess and umbrella policies, provided that those policies are concurrent in all respects regarding the coverage afforded by the policies. The coverage of any excess or umbrella policy must be at least as broad as the coverage of the primary policy.

7.2 Certificates of Insurance. Alpha shall (a) deliver to Subscriber certificates of insurance which evidence the minimum levels of insurance set forth Section 7.1 above; and (b) cause its insurance provider(s) to name Subscriber as an additional insured and to notify Subscriber in writing of the effective date of such coverage. Alpha shall deliver the certificates of insurance required by this Section 7.2 to Subscriber within thirty (30) days of the Effective Date; again at least ten (10) days before the expiration date of any applicable policy; and again on renewal of any applicable policy.

7.3 Obligations Continue Regardless of Insurance. The insurance requirements set forth in this Article are independent of each party’s indemnification and other obligations under this Agreement and shall not be construed or interpreted in any way to restrict, limit, or modify each party’s indemnification and other obligations or to limit each party’s liability under this Agreement.

7.4 Waiver of Subrogation Rights. Each party agrees to cause the insurance companies issuing its insurance policies to waive any subrogation rights that those insurance companies may have against the other party, or its insurers, by way of contract or otherwise.

8. INDEMNIFICATION

8.1 Indemnification. See Exhibit A Section 7.

9. TERMS AND TERMINATION.

9.1 Term and Termination. See Exhibit A Section 1.2 and 3.

10. OTHER AGREEMENTS.

10.1 Certain Subscriber Responsibilities. Subscriber shall submit a completed access application for each Representative to request an Alpha customer identification card prior to Representative being provided unescorted access to the Data Center and to Subscriber’s Cabinet(s). Subscriber shall immediately notify Alpha should any Representative no longer be permitted access the Data Center or any identification card or other credential be lost or compromised. Subscriber shall provide to Alpha from time to time the identity of the Representatives to be allowed access to the Subscriber Cabinet and Alpha shall ensure only such Representatives have access to the Subscriber Cabinet. Representatives shall be required to sign in and show photo identification. Subscriber and Alpha agree that Alpha shall not allow anyone not listed by Subscriber as a Representative to have access to the Data Center or the Subscriber Cabinet without exception. Subscriber shall mark the Subscriber Systems with inventory tags that contain Subscriber’s name and any other pertinent information to identify Subscriber; provided, that any failure by Subscriber to take such action shall in no way alter its ownership rights in the Subscriber Systems.

10.2 Ownership of Equipment. All equipment installed within the Subscriber Cabinet for the purpose of providing the Services, including the racks and cabinets themselves, and not constituting Subscriber Systems (the “Equipment”) is the sole property of Alpha or its assigns. Without limiting Subscriber assumes the responsibility for the risk of loss and liability for all damages to, or loss of, (i) the Equipment from all causes except to the extent such damage or loss is due to the gross negligence or willful misconduct of Alpha, its agents or subcontractors, and (ii) the Subscriber Systems, subject to Section 2.2.7, from all causes. Except as may be otherwise agreed to by the parties in writing, Subscriber shall be liable for securing all necessary rights and licenses for software, programs or code placed on Subscriber Systems other than any of the foregoing placed on Subscriber Systems by Alpha or its agents or representatives without the prior approval of Subscriber. Except as may be otherwise agreed by the parties in writing, Alpha disclaims any and all liability for the Subscriber Systems and the content on such Subscriber Systems. Subscriber will promptly and thoroughly respond to any notices that the content on the Subscriber Systems violates the Digital Millennium Copyright Act, 17 U.S.C. § 101 et. seq. or any other law, rule or regulation.

11. CERTAIN LIMITATIONS.

11.1 LIABILITIES OF PARTIES. EXCEPT FOR CLAIMS ARISING OUT OF OR RELATING TO A BREACH OF CONFIDENTIAL INFORMATION OR BASED ON FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY, NOR ANY OF THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE SUCCESSORS, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, PARTNERS, AGENTS, REPRESENTATIVES, EMPLOYEES, OR THIRD PARTY VENDORS (INCLUDING TELECOMMUNICATIONS PROVIDERS) SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) (COLLECTIVELY, “SPECIAL DAMAGES”) ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS SECTION 11.1 SHALL NOT LIMIT ALPHA’S LIABILITY FOR ANY CREDITS RELATED TO SERVICE LEVEL AGREEMENTS PURSUANT TO THE TERMS. FOR THE AVOIDANCE OF DOUBT, THE PROVISIONS OF THIS SECTION 11.1 SHALL NOT LIMIT THE LIABILITY OF THIRD PARTY VENDORS (INCLUDING TELECOMMUNICATIONS PROVIDERS) OF ALPHA UNDER ANY DIRECT CONTRACT BETWEEN SUBSCRIBER AND SUCH VENDOR FOR THE RECEIPT BY SUBSCRIBER OF SERVICES RELATED TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THIS SECTION 11.1 SHALL NOT LIMIT SUBSCRIBER’S OBLIGATIONS UNDER (a) SECTION 8.1 WITH RESPECT TO REIMBURSEMENT TO AN INDEMNIFIED PERSON WITH RESPECT TO SPECIAL DAMAGES PAID BY SUCH INDEMNIFIED PERSON TO, OR PAYMENT ON BEHALF OF AN INDEMNIFIED PERSON OF SPECIAL DAMAGES TO A THIRD PARTY CLAIMANT WHO HAS BEEN AWARDED SPECIAL DAMAGES OR (b) SECTION 8.1 WITH RESPECT TO REIMBURSEMENT TO AN INDEMNIFIED PERSON OF SPECIAL DAMAGES, WHETHER INCURRED BY SUCH INDEMNIFIED PERSON OR AWARDED TO A THIRD PARTY CLAIMANT.

11.2 WARRANTIES. ALPHA WARRANTS THAT ITS PERSONNEL SHALL PERFORM ALL SERVICES IN A MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT (I) THE SERVICES PROVIDED BY ALPHA PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND BY ALPHA, ITS AFFILIATES, SUBSIDIARIES (OR THEIR SUCCESSORS), AGENTS, OR THIRD PARTY VENDORS (INCLUDING TELECOMMUNICATIONS PROVIDERS), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, TITLE, AND NON-INFRINGEMENT AND (II) THE ENTIRE RISK AS TO THE QUALITY OF THE SERVICE IS WITH THE SUBSCRIBER AND THERE IS NO GUARANTEE THAT THE SERVICE WILL MEET THE SUBSCRIBER’S REQUIREMENTS, BE ERROR FREE, OR OPERATE WITHOUT INTERRUPTION. FOR THE AVOIDANCE OF DOUBT, THE PROVISIONS OF THIS SECTION 11.2 SHALL NOT LIMIT THE LIABILITY OF THIRD PARTY VENDORS (INCLUDING TELECOMMUNICATIONS PROVIDERS) OF ALPHA UNDER ANY DIRECT CONTRACT BETWEEN SUBSCRIBER AND SUCH VENDOR FOR THE RECEIPT BY SUBSCRIBER OF SERVICES RELATED TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.

11.3 DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD PARTIES. ALPHA DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ALPHA’S NETWORK TO THE EXTENT THAT SUCH FLOW DEPENDS ON THE PERFORMANCE OF THE INTERNET OR DATA SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT SUBSCRIBER’S CONNECTIONS TO THE INTERNET OR SUCH DATA SERVICES (OR PORTIONS THEREOF). ALTHOUGH ALPHA SHALL TAKE ALL ACTIONS REASONABLY NECESSARY TO REMEDY AND MINIMIZE SUCH EVENTS, ALPHA CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, ALPHA DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS, AND SUBSCRIBER ACCEPTS SUCH DISCLAIMER WITHOUT LIABILITY TO ALPHA.

11.4 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN SECTION 2.2.7, THE TOTAL LIABILITY OF ALPHA TO SUBSCRIBER IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY SUBSCRIBER OR (B) THE AGGREGATE AMOUNTS PAID BY SUBSCRIBER TO ALPHA UNDER THIS AGREEMENT FOR THE SIX (6) MONTHLY PERIODS PRIOR TO ACCRUAL OF SUCH CAUSE OF ACTION (OR, IN THE EVENT THAT THIS AGREEMENT HAS BEEN IN EFFECT FOR LESS THAN SIX (6) MONTHS AFTER THE SERVICES COMMENCEMENT DATE, SIX (6) TIMES THE AVERAGE ACTUAL (OR PROSPECTIVE) MONTHLY PAYMENT AMOUNTS DURING A SIX (6) MONTH PERIOD PRECEDING (OR FOLLOWING) THE DATE OF THE CALCULATION). THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND CLAIMS UNDER ANY APPLICABLE LAW.

11.5 Notwithstanding anything to the contrary herein, Subscriber shall not have any liability hereunder to Alpha or any other Person for any damages caused by any computer viruses transmitted by or through the Subscriber Systems to the extent such transmission is beyond Subscriber’s reasonable control, provided that Subscriber has taken commercially reasonable efforts in accordance with customary industry practice to protect against such computer viruses.

12. MISCELLANEOUS PROVISIONS.

12.1 No Lease. This Agreement is an agreement for services and is not intended to and shall not constitute a lease of any real property.

12.2 Marketing. Neither party shall issue any press release, advertising, publicity or public statement or in any way engage in any other form of public disclosure that indicates the other party’s relationship with such party or implies any endorsement by the other party of such party or such party’s products or services without the prior written approval of the other party.

12.3 GOVERNING LAW, ETC.

(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WEST VIRGINIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. Each of the parties irrevocably and unconditionally agrees (i) to be subject to the jurisdiction of the courts of the State of West Virginia and of the federal courts sitting in the State of West Virginia, (ii) that, to the extent such party is not otherwise subject to service of process in the State of West Virginia, it will appoint (and maintain an agreement with respect to) an agent in the State of West Virginia as such party’s agent for acceptance of legal process, (iii) that service of process may also be made on such party by prepaid certified mail with a validated proof of mailing receipt constituting evidence of valid service, and (iv) that service made pursuant to (ii) or (iii) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such Party personally within the State of West Virginia.

(b) Each party hereto irrevocably waives any objection to the venue of the courts designated in this Section 12.4 (whether on the basis of forum non conveniens or otherwise), and accepts and submits to the jurisdiction of such courts in connection with any legal action or proceeding against it arising out of or concerning this Agreement.

12.4 Interpretation. When a reference is made in this Agreement to any schedule, exhibit or appendix, such reference shall be to a schedule, exhibit or appendix to this Agreement unless otherwise indicated. Each instance in this Agreement of the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation.” As used in this Agreement, the term “days”“ means calendar days, not business days, unless otherwise specified. Unless otherwise specified, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph, subparagraph, schedule, exhibit, addendum or other subdivision. Similarly, unless otherwise specified, the words “therein,” “thereof” and “thereunder” and other words of similar import refer to a particular agreement or other instrument as a whole and not to any particular section, paragraph, subparagraph, schedule, exhibit, addendum or other subdivision. Unless otherwise specified, any reference to sections or clauses are to sections or clauses of this Agreement. Unless otherwise specified, references to any document or agreement, including this Agreement, shall be deemed to include references to such document or agreement as amended, supplemented or replaced from time to time in accordance with its terms and (where applicable) subject to compliance with the requirements set forth therein. Unless otherwise specified, references to any party to this Agreement or any other document or agreement shall include the heirs, successors and permitted assigns of such party. Unless otherwise specified, any reference to a statute includes and refers to the statute itself, as well as to any rules and regulations made and duly promulgated pursuant thereto, and all amendments made thereto and in force currently from time to time and any statutes, rules or regulations thereafter duly made, enacted and/or promulgated, as may be appropriate, and/or any other governmental actions thereafter duly taken from time to time having the effect of supplementing or superseding such statute, rules, and/or regulations. The language in all parts of this Agreement shall be in all cases construed according to its plain meaning and not strictly for or against one or more of the parties hereto. Any table of contents or headings contained in this Agreement are for reference purposes only and shall not be construed to affect the meaning or interpretation of this Agreement. When required by the context, (i) whenever the singular number is used in this Agreement, the same shall include the plural, and the plural shall include the singular; and (ii) the masculine gender shall include the feminine and neuter genders and vice versa. Unless the context requires otherwise, derivative forms of any capitalized term defined in this Agreement shall have the comparable meaning to that of such term.

12.5 Usury Laws. The parties agree that it is their intent to comply with any applicable usury laws and that in no case shall the amount of interest charged or collected by either party hereunder exceed the highest percentage allowed by Applicable Law.

12.6 Force Majeure.

12.6.1 If a party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event, then (i) its obligations under this Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that it is so prevented, hindered or delayed, (ii) as soon as reasonably possible after commencement of the Force Majeure Event it shall give notice in writing to the other party of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement; and (iii) as soon as reasonably possible after the cessation of the Force Majeure Event it shall give notice in writing of the cessation of the Force Majeure Event and shall resume performance of all of its obligations under this Agreement.

12.6.2 If the Subscriber Cabinet is damaged due to a Force Majeure Event, Alpha shall give prompt notice to Subscriber of such damage, and may temporarily relocate the Subscriber Systems to a new Subscriber Cabinet or a new Data Center, if practicable and if such new cabinet or new Data Center satisfies the requirements of Sections 2.2.1,2.2.2, 2.2.3 and 2.2.4. If the Data Center’s exercises an option to terminate a particular lease due to damage or destruction of the Subscriber Cabinet, or if Alpha decides not to rebuild the Data Center but to provide similar co-location services at another location, this Agreement will terminate as of the date of the Force Majeure Event; provided that if Alpha provides similar co-location services at another location following such damage or destruction, Subscriber shall have the option to have the Services provided by Alpha to Subscriber out of such new location on substantially the same terms and conditions as under this Agreement, subject to price adjustments to reflect changes in costs relating to such new location, in Alpha’s sole discretion. If neither the landlord of the Data Center nor Alpha exercises such right to terminate, Alpha will repair the Subscriber Cabinet to substantially the same condition it was in prior to the damage, completing the same within a commercially reasonable time period. In the event that Alpha fails to complete the repair within a commercially reasonable time period, Subscriber will have the option to terminate this Agreement, which option will be the sole remedy available to Subscriber against Alpha under this Agreement relating to such failure. If the Subscriber Cabinet or any portion thereof is rendered untenable by reason of such damage and the Subscriber Systems are not relocated to a new Subscriber Cabinet or Data Center, the service charges will proportionately abate for the period from the date of such damage to the date when such damage is repaired.

12.7 Regulatory Compliance

12.7.1 Subscriber, its parent corporation, customers, subsidiaries and certain related entities (collectively, the “Subscriber Group”) are licensed by or otherwise subject to the authority of various casino and gaming regulatory agencies (“Regulator(s)”). The Subscriber Group has adopted a regulatory compliance policy and Alpha agrees to provide the Subscriber Group with such documentation, information and assurances regarding itself, any principal employees, brokers, agents or others where applicable as may be necessary in order for the Subscriber Group to comply with the Subscriber Group’s regulatory compliance policy and/or with the request of any Regulator(s) of competent jurisdiction. The foregoing shall be a material obligation of Alpha hereunder. Further, Alpha agrees that in the event Subscriber shall in good faith determine, in its sole and exclusive judgment, that Alpha is or may be, engaged in, or about to be engaged in, any activity or activities that may negatively impact or affect Subscriber’s ability to conduct business or the business of any of its affiliates or subsidiaries as qualified or licensed by the applicable gaming regulatory agency, or any gaming licenses or permits held by those entities, or that the relationship between the parties could have an adverse effect on Subscriber’s ability to conduct business or the business of any of its affiliates or subsidiaries as qualified or licensed by the applicable gaming regulatory agency, or any gaming licenses or permits held by those entities, then Subscriber shall have the right to terminate this Agreement immediately without prior notice and without penalty, prejudice or further liability to Subscriber.

Attachment A1

Services Description and Specifications

This attachment describes the Services along with technical specifications and pricing (collectively the “Specifications”).  Following the Effective Date, any requested changes to the Specifications can be accomplished by completing a written change request agreed to and executed by both Subscriber and Alpha, and attached as an amendment to this agreement, herein included by this reference.

1. Subscriber Cabinet
   Each standard Subscriber Cabinet provided by Alpha shall meet the following minimum specifications:

• • Industry standard 19”, 4 post data equipment cabinet.
  • 24” wide, 44 rack units tall, and 32 inches deep.
  • Redundant (A/B) 20 AMP 208v service.

2. Power Specifications
   Unless otherwise mutually agreed, as reflected in any Quote attached to and made part of this Agreement, Alpha will install a single A side and a single B side 20 AMP 208V whip each terminated with a NEMA L6-20R to each Subscriber Cabinet protected by separate circuit breakers.  The Subscriber must supply power distribution within the Subscriber Rack.  Alpha only guarantees that each standard Subscriber Cabinet will have a maximum of 20 Amps at 208V available at one time.  Failure to properly manage power consumption by subscriber does not constitute a failure on behalf of Alpha.  If additional power is required for one or more Subscriber Cabinets, the additional charges shall be part of the Pricing Information as described in Section 4 herein.

3. Communication and Data Circuits
   Unless otherwise specified in any Quote attached to and made part of this Agreement, this Agreement does not cover the terms and conditions associated with any Alpha or External provider communication or data circuits or the reliability of said circuits.  Alpha agrees to install, maintain, and troubleshoot as necessary any cross connect cables to provide access from Subscriber’s Cabinets to the service provider’s demarcation point on the 2^nd floor of the Data Center.  If this Agreement and one or more Quotes provides for the provision of Internet services, the Service Level commitments may be found in Attachment “B1”.

4. Pricing Information
   Pricing and quantities for services provided are defined in Alpha Quote, which Quote is attached.

Attachment B1

Service Level Agreement

This Service Level Agreement’s (SLA) Terms and Conditions shall apply to the Services that Alpha has agreed to supply to Subscriber under that certain Co-Location Services Agreement (the “Agreement”), to which this SLA is attached and incorporated, and only in respect of the provision of such Services during such period and where Subscriber’s accounts with Alpha are in good standing.  Availability of this SLA may be subject to further conditions or qualifications set forth in the Agreement.  If this Agreement and one or more Quotes provides for use by Subscriber of Alpha’s “Remote Hands” support, the Service Level commitments may be found in Attachment “D”.

Alpha recognizes that facility and network services are critical to the Services described in the Agreement.  Alpha backs its commitment and focus on operational excellence and reliability by providing a facility uptime guarantee of 99.999% for Data Center Service customers.  The Data Center facility includes Environmental, Power and Security.

1. Facility Availability
   The Alpha Data Center includes power, cooling and security and is made available 99.999% of up time, as averaged over a calendar month.  This guarantee of service includes Power, cooling and security provided to the Subscriber Cabinet located in the Data Center.

4. Environmental
   Alpha will use commercially reasonable efforts to ensure that the temperature of open space in the Data Center or other space provided to Subscriber will remain between 64 and 78 degrees Fahrenheit, and relative humidity will remain between 30% and 70%.  This commitment does not apply to localized conditions within a particular Subscriber Cabinet, cage, rack or other enclosed space, except to the extent that the Subscriber Cabinet is a room dedicated or partially dedicated to Subscriber for its use.
5. Power
   Alpha’s power availability guarantee is to have AC power provided to Subscriber’s Cabinet available 99.999% of the time through generators and our Uninterruptible Power Supply (UPS).  Our facilities provide power systems that feature continuous, redundant and protected AC power.  The redundant power in our facility enables your equipment to run continuously, even in the event of a major power outage.  Redundant power will be delivered to your equipment via separate power connections, designated A and B.  This power availability guarantee ensures that either the A-side or B-side power will be available.  At times, due to maintenance or unforeseen events either side may become unavailable for a period of time.  To ensure continued availability, your equipment should be connected to, and be able to use power from either source.
6. Outage Reporting Process
   The Outage Reporting Process is applicable only to network service provided at the Data Center and is applicable only if Subscriber notifies the Alpha Network Maintenance Center (NMC) by calling 304 201-7485 or via Alpha’s Web-Based Trouble Ticket Reporting system.  Outage Reporting notification will be proactive.  Subscriber is solely responsible for providing Alpha accurate and current contact information for Subscriber’s designated points of contact.  Alpha will be relieved of its obligations under this Outage Reporting Process if Alpha’s contact information for Subscriber is out of date or inaccurate due to Subscriber’s action or omission. Subscriber will be responsible for providing accurate, affected circuit identification, i.e. circuit ID and phone numbers. 

5. Alpha Escalation List
   Please see attached Escalation List.

6. Outage Response
   A Service Outage begins when Alpha is notified or becomes aware of the failure, whichever occurs first.  A Service Outage ends when the affected network or facility service is again operational and made available to Subscriber.  Alpha may undertake Critical Maintenance at any time deemed necessary and shall provide notice, as much in advance as is commercially reasonable under the circumstances, of Outage to Subscriber as circumstances practically permit.  An Outage Response is defined as an Alpha Internal ticket opened to address the issue.

7. Service Availability
   The Services described under the Agreement will be available to Subscriber 99.999% of the time, as measured over a calendar month.  “Service Unavailability” exists when a particular Subscriber’s Network or Facility Service becomes unavailable.  If Alpha fails to meet the above Services availability provision of the SLA, for each cumulative hour of Service Unavailability, Subscriber shall be entitled to credit as follows:

   Cumulative Service Unavailability Duration / Subscriber Credit (# Days Credit)

   (1) Unavailable less than 60 min. per month / Credit = 1 days credit
   (2) More than 60 minutes less than 120 minutes / Credit = 2 day credit
   (3) More than 120 minutes less than 240 minutes / Credit = 4 days credit
   (4) More than 240 minutes less than 480 minutes / Credit = 8 days credit
   (5) More than 480 minutes / Credit = up to 16 days credit according to the formula above

   Credits will not be applied to Subscriber account due to Service Unavailability resulting from (a) scheduled network maintenance not exceeding one hour per month; (b) the occurrence of a Force Majeure event as described in the Agreement; (c) Subscriber Systems or Subscriber equipment issues, (d) any unavailability of electronic access resulting from the unavailability of internet access.

9. Maintenance (Scheduled & Critical)
   Scheduled Maintenance: Scheduled (non-emergency) maintenance shall mean any maintenance which has the potential to adversely impact the power, cooling, or security services provided by Alpha to the Subscriber at the Alpha Data Center.  Scheduled Maintenance will be performed between the hours of 12:00 AM to 6:00 AM local time, or at other such time and duration as may be mutually agreed, considering Subscriber’s business and clinical needs.  Scheduled (non-emergency) maintenance performed on redundant systems which have no immediate impact on Subscriber’s services or equipment unrelated to Subscribers services may be performed at the discretion of Alpha.

   Critical Maintenance: Critical maintenance may be performed at any time to correct network conditions that require immediate attention.  Critical maintenance is performed at the discretion of Alpha and may degrade or disrupt service.  All reasonable business efforts will be attempted to notify the Subscriber’s Authorized Contact as is reasonably practicable under the circumstances.

10. Policy Change
    Alpha reserves the right to change, amend, or revise this SLA policy at any time.  Changes or revisions to the SLA will be in a written format and notification mailed to Subscriber 30 days in advance of effective change date, with a copy via email or facsimile sent simultaneously to the Authorized Contact.  Such changes only shall be made with written agreement by Subscriber, which agreement shall not be unreasonably withheld, that the proposed changes, amendments, or revisions do not constitute a material modification to, or divergence from, the terms of the Agreement.  If Subscriber is unable to reasonably agree that the revisions do not constitute a material modification to, of divergence from, the terms of the Agreement, Subscriber shall be entitled to terminate the Agreement without penalty.