Pathway Communications

Fixed Wireless Service Level Agreement and Terms of Service

This Service Level Agreement (SLA) documents Pathway Communications’ commitment to provide high quality Internet Access, e-mail and Web Hosting services. It is to be used as a reference guide for Pathway Communications customers and Channel Partners.

Service Levels: Hours of Operation
Availability Pathway Communications monitors its system and network on a 24-hour / 7 days per week basis. In the event of service outages, our system alarms automatically notify our Support Staff about the problem. A customer can report any service problem to our Client Care centre 24 hours a day, 7 days a week. The telephone number is 416-214-6363 (Toronto), 905-570-8789 (Hamilton).

Scheduled Maintenance Planned down times will occur on a scheduled basis between the hours of 22:00 to 06:00, customer’s local time. Pathway Communications will provide 5 days notice for any planned outages for those services and/or customers being affected.

Emergency Maintenance When emergency maintenance is required, Pathway Communications will provide the greatest amount of reasonable lead-time and arrange, with client management or IT contact, a solution that minimizes the impact on the users.

Availability Objective
Pathway Communications’ services are available 24 hours a day; 7 days a week, taking into consideration scheduled and emergency maintenance times. Systems are monitored and managed from our Network Operations Centre (NOC) to ensure a monthly committed level of availability, in excess of 99.9% outside of scheduled and emergency maintenance periods. Pathway Communications designed and built its network with redundant connections to the Internet to maximize reliability and network availability.

Latency Service Objective
Pathway Communications’ latency is based on an average round-trip transmission between Pathways’s Internet Gateway Router and the customer’s access point (hub site). The latency is estimated not to exceed more than 60 milliseconds.

Mean Time to Repair (MTTR)
Pathway Communications NOC strives to restore customer services in a timely manner. In the event that we need to dispatch one of our field service technicians, our goal is to achieve a Mean Time To Repair (MTTR) of 5 hours during regular service hours (Monday to Friday – 8am to 5pm. This MTTR is contingent on Pathway having prompt access to its equipment in a customer’s location.

Problem Classification
Problems and service requests are recorded in the Pathway Communications ticketing system and are evaluated by Pathway personnel by level of severity. There are 3 levels of severity, designed to record customer problems: URGENT: Complete service interruption MEDIUM: Service degradation or preventable service outage. LOW: Information request or minor service degradation These are more specifically described at the end of this document.

FULLY MANAGED FIBRE ROUTER
Pathway will provide the use of a commercial grade Fibre to Ethernet router with our Fibre service. Pathway agrees to configure, monitor and manage the router for the user. Configuration change requests must be made, in writing to Pathway’s technical support department and are subject to Pathway approval. Within the base monthly price, the User is entitled to two router configuration changes per month. Additional changes at charged at $50 per change. Unused configuration changes cannot be carried over to the following month.

SUBJECT TO CHANGE AND APPLICABILITY
The Pathway Communications’ Server Fibre Service Level Agreement and General Conditions of Use are subject to change with 15 days’ notice. Please contact Pathway Communications for the most recent version of these documents. This service level agreement will be deemed inapplicable if it is discovered that the User or anyone at the User’s premises has taken any action, whether deliberate or otherwise, to disrupt Pathway’s ability to deliver the service as outlined in the agreement, including, not but limited to, logging in to the Pathway provided Fibre router.

Help Desk Hours
Pathway Communications’ Help Desk can be reached 24 hours a day, 7 days a week by calling 416-214-6363. The technical representative responding to the call will attempt to classify the call by the level of urgency and attempt to rectify the trouble on line with the customer. Should this not be possible the technical support representative will update the customer on trouble status as agreed to by the customer.

Problem Notification
Before calling Pathway Communications’ Technical Support, please have the following information available so that your call can be handled more efficiently. • Company Name • Name of Caller • Location of problem • Type of Problem • Priority or severity of the problem • A detailed description of the nature of the call

Business Continuity
Pathway Communications places considerable emphasis on service availability and continuity through system architecture design and operation management discipline. The remaining parts of this section discuss other preventative plans put into place for this service, and possible contingency measures available to the client in the event of a prolonged service failure.

Disaster Recovery
Pathway emphasizes prevention and management discipline and does not currently offer off-site disaster recovery services for our services. However, Pathway is in a position to develop disaster recovery plans within a contractual relationship with specific clients taking into consideration the specific conditions for each case.

Security
Pathway has implemented the necessary logical and physical security required to ensure a secure environment in order to deliver our services. A corporate software security policy is in effect. A number of procedures are implemented in order to control personnel, System Software maintenance, Application Software design and maintenance, Software-controlled accessibility, Tele-communications, environmental infrastructure and physical access. Physical security – Only authorized operators and system administrators have access to the NOC and equipment rooms.

Review and Update of the Service Level Agreement
Pathway Communications will periodically update this document, and will distribute updates via e-mail, to its customers. Changes will be made at the sole discretion of Pathway, with changes being made in the best interest of all parties. Some changes to this documentation may require contractual and pricing updates.

Problem Classification & Notification
All inquiries/problems that are the responsibility of Pathway Communications Access services are classified as follows. Problems may be re-classified in priority levels as new information about the problem becomes available.

SPECIFIC LIMITATIONS ON USE OF WIRELESS

Unlimited Data transfer rate does not apply to users who offer ISP/ASP/Web hosting Services. You also agree that the assignment of any IP address to you in the configuration of this service is provided as a lease, or loan of the address number. IP address space is managed and maintained by an external organization (ARIN), and Pathway reserves the right to affect changes to IP assignments as necessary, required, or directed to do so. Pathway will exercise best efforts to provide you with as much advance notice as possible, and will work with you should changes be required.

GENERAL CONDITIONS OF USE

1. The User agrees to use the Services only for lawful purposes and not for unauthorized copying, duplication, distribution, display or modification of any material or information protected by copyright or trademark or otherwise lawfully restricted (including, without limitation, software, programs, games and computer code). The User shall not use the Services for any purpose that is contrary to applicable laws or which is a nuisance. The User agrees not to transmit any material that is unwanted, threatening, abusive, obscene, discriminatory (including, without limitation, “hate” literature directed at any identifiable group) or in contravention of any law. The User agrees not to undertake mass-mail broadcasts of electronic mail (e-mail) or Usenet postings with the intent of sending unsolicited advertising to other users of the Internet. The User will not use IRC “bots” unless specifically authorized by Pathway. The User will be responsible for the actions and activities of any party who uses the Services using the Username identification and password of the User as provided by Pathway whether or not such person used the identification and password with the User’s consent or knowledge.

2. Pathway will not be responsible for temporary interruption of Services (whether due to utility service breakdown, excessive users, mechanical breakdown or other reasons) and the User will not be entitled to any refund for any such temporary interruptions so long as Pathway is actively seeking to correct the problem. If there is a material increase in the cost of providing the Services (such as, by way of example, an increase in the cost of telephone line charges from any ILEC or any form of tax on Internet use) Pathway will give you 30 days written notice of any increase to the rates of your services. As a result of this notice, you can, within 15 days of receipt of that notice, cancel your agreement with Pathway without any penalty. You will be responsible for paying any charges you incur up to the date of cancellation. If a charge on your credit card is denied or your cheque or automatic withdrawal is returned due to non-sufficient funds, you agree to immediately pay a $45 service charge. If you fail to do this within three business days, we will disconnect your services. There will be a service charge of 1.5% per month (18% per year) on any amounts owed to Pathway that are more than 30 days past due. You agree to pay Pathway $25.00 to reconnect Service(s) terminated under this Agreement.

3. Pathway will provide the Services using currently available technology and will avoid using any hardware, software or methods known to threaten User security. Beyond that, Pathway makes no warranties of any kind, whether expressed or implied, in relation to the accessibility, accuracy, reliability, safety or quality of the Services. Pathway does not guarantee the privacy of files or E mail or the security of any computer used to access the Services. Pathway has no responsibility for any damage suffered by any person, organisation, group or entity due to loss of data, delay, non-delivery or service interruptions in using the Services, whether or not caused by the negligence, errors or omissions of Pathway or those for whom it is responsible at law. Pathway exercises no control and has no responsibility whatsoever over the information passing through the Services. Use of any information obtained through the Services is at the User’s sole risk and User assumes full responsibility for the accuracy, reliability, quality or effect of information obtained through the Services. The User specifically waives any right to any consequential damages as a result of any failure of the Services, including, without limitation, loss of data or hardware, and under no circumstances will Pathway be liable to the User or any other party for any amount greater than the amounts paid by the User for Services, even in the event of the negligence of Pathway or a fundamental breach of this Agreement. The User agrees to indemnify and hold harmless, Pathway, their officers, directors, employees and agents from any and all claims resulting or arising from this Agreement, the User’s use of the Services and any breach of this Agreement by the User whether or not caused by the negligence or omission of Pathway or those for whom it is responsible at law.

4. Notwithstanding that the Pathway billing rates may be referred to or advertised as “monthly”, the actual billing period is thirty (30) days, regardless of the length of the current month. All payments for use of the Services are due in advance every thirty (30) days, commencing from the date the User’s Plan commences (when the User signs up with Pathway) and continuing until termination of this Agreement. Any Account that is more than 15 days late in any payment will be in default. Payments made by cheque which are returned for lack of funds or any other reasons will be in immediate default and subject to an additional returned check charge (currently $45) which must be paid before the Account is in good standing. The installation fee and first month’s service charges are payable in advance and are required before your service can commence. Thereupon, all charges are billed in advance at the beginning of your billing period. This contract for the Service will remain in place for a minimum term of one, two, three or five years (which ever term is selected by the User on the order form) commencing from the date that the service is provisioned by Pathway and will be extended automatically for the same period thereafter. The contract will be extended automatically for similar term unless Pathway receives advance written notice of your intention not to continue with the service, at least two months prior to the completion of the initial or renewed service contract. Once such contract period has commenced, should you decide to terminate this contract before the expiration of the full contract period, you agree that you will be obliged to pay Pathway the full sum of the remainder of the contract period at the existing rate. The user is not entitled to any refund should they decide to terminate the annual services before the end of the contract term. The User’s access to Services may be restricted and the Account terminated at any time, without notice, if the User is in default of this Agreement and upon such termination Pathway will have no obligation to make any refund or other payment (including, without limitation, refund of installation fees, prepaid fees or other credits for future Services) to the User. Despite any such termination, Pathway may pursue any other available recourse against the User, including barring the user from sending E-mail or other communication to the Pathway server from another server.

5. Pathway may, without notice, change the terms and conditions upon which the Services are provided (including, without limitation, changing the continuous use limits for dial up users and changing the rules of access to the Services) so long as Pathway continues to provide regular and reasonable access to the Services for the term of this Agreement. Pathway may terminate this Agreement at any time for any reason without notice to the User and upon such termination by Pathway, the User will be entitled to request that Pathway refund any credit that the Account may have for prepaid unused Services and the User will have no other recourse against Pathway whatsoever for such termination. If the User voluntarily terminates this Agreement or if the Account is terminated due to the default of the User, the User will not be entitled to any refunds from Pathway whatsoever.

6. All communications and notices between Pathway and the User will be conducted through E-mail unless otherwise agreed to by an authorised representative of Pathway. All such communications and notices will be deemed received by the User three days after being sent by E-mail by Pathway. The User specifically agrees that Pathway has no obligation to send any other notice to the User, even in the event of default. All notices from the User for modifications, changes, upgrades or termination of Services will be effective only if presented to, and received by, Pathway in writing or via E-mail. Such notices sent to Pathway by the User must be confirmed by return E-mail to be effective.

7. Each of the services is provided “as is” and “as available,” without warranty of any kind. Pathway does not warrant uninterrupted use or operation of any service, or that any data sent by or to you will be transmitted in uncorrupted form or within a reasonable period of time. All representations, warranties, endorsements and conditions of any kind, express or implied, including without limitation, warranties of title or non-infringement and any implied representations, warranties and conditions of fitness for a purpose and merchantable quality and those arising from a course of dealing or usage of trade are hereby excluded. Pathway shall have no liability to you for patent or copyright infringement or misappropriation of trade secrets with respect to any service provided by any third party through Pathway. Your course, in the event of any such claim with respect to any service, shall be solely against such third party.

8. Force Majeure. Neither party is liable for failure or delay in performance hereunder which is proximately caused by strikes, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, labor conditions, or other cause beyond its reasonable control. The failure to make any payment required under this Agreement shall never be excused under this force majeure provision.

9. Pathway may by written notice to the User, cancel the Services if the user:(i) fails to perform or comply with any of the provisions of the order form or the Conditions of Service and Use (ii) commences any proceeding seeking relief or protection under any bankruptcy or insolvency laws, (iii) seeks to liquidate, dissolve or wind up its business or (iv) makes an assignment for the benefit of creditors for all or substantially all of its assets.

10. If the User moves to a new office location and wishes to relocate the ADSL connection, Pathway requires a minimum of thirty (30) business days notice in order to provision access at the new location. Additional charges may apply. In the event that we are unable to provide ADSL service or a similar service offering at the new location, you will still be responsible for fees payment until the end of your contract.

11. The user hereby expressly consents and grants Pathway Communications the right to make all credit inquiries necessary from time to time.

SPECIFIC TERMS AND CONDITIONS SURROUNDING EQUIPMENT

12. On the following terms and conditions, Pathway agrees to provide the User with the use of the property described below (the “Equipment”)

13. The Equipment shall be and shall remain at all times the sole property of Pathway. This agreement provides only for the locating of the Equipment with the User for the convenience of the User and creates no other property rights in the Equipment whatsoever. Pathway maintains the right to substitute, repair, remove, change or otherwise deal with the Equipment in whatever way it sees fit and at any time it deems appropriate.

14. The Equipment is provided to the User until such time as the User ceases to obtain WIRELESS/ISDN/ ADSL Services from Pathway or until Pathway requires the return of the Equipment for service or other purposes. The Equipment is provided for use solely by the User and only in connection with the paid WIRELESS/ISDN/ADSL Services obtained by the User from Pathway. Pathway agrees to act reasonably and will not terminate or interrupt the User’s access to the Equipment without good reason.

15. Upon request from Pathway, the Equipment will be returned to Pathway at its Office in good working order without any dispute or delay whatsoever. The User confirms that it has no rights whatsoever in the Equipment (including, without limitation, the right to retain or use the Equipment) except as provided herein.

16. The User will use the Equipment properly and only for its intended use and will keep the Equipment clean, dry, in a well-ventilated location and in good repair. The User will not remove, lend out, disassemble, misuse, tamper with, modify or expose the Equipment to conditions that may result in damage to the Equipment. The User will not attempt to program, configure, turn off, or otherwise deal with the Equipment, except with the prior express permission, knowledge and assistance of Pathway. In the event that there is an interruption of service for any reason whatsoever due to failure of the Equipment, the User will immediately notify Pathway via telephone and in writing and will follow Pathway’s direction in dealing with the problem. Pathway will have no liability to the User whatsoever for interruption of use of the Equipment except as specifically set out herein or in the WIRELESS/ISDN/ADSL Service contract between the parties.

17. The User is fully responsible for any and all damages, which may occur to the Equipment during the period that the Equipment is in the User’s possession. Any cost of such damage, as determined by Pathway, acting reasonably, shall be paid to Pathway by the User within seven days of invoicing for the cost of such damage.

18. The User will provide Pathway with complete access to the Equipment, including access to the room and area where the Equipment is located, at any time that the Pathway so desires. Pathway is entitled to immediate access to the Equipment, without notice, at any time between 9 am and 5 p.m. on a business day (regardless of whether the User is open on that day) and at such other times as the parties may agree. In the event that the User is in default of this Agreement or of its WIRELESS/ISDN/ADSL service contract with Pathway, then the User hereby irrevocably directs its staff, landlord (if applicable) and any other custodial staff to permit Pathway access to the User’s premises to remove the Equipment.