Pathway Communications

Server Co-location Service Level Agreement and Terms of Service

This document is an addendum to the Terms and Conditions Of Use and is applicable solely to Users subscribing and paying for Pathway Communications’ server co-location services. Pathway’s description of the Service Level Agreement for co-located servers is based on, and applies only to the specific service offerings selected by the User. No other or additional services are provided or implied at any time under the terms of this SLA for Server Co-location Services.

Pathway will provide a live 100BaseT Ethernet connection and AC Power outlet to the User’s co-location cabinet. Pathway guarantees that its co-location data centre is equipped with Internet access, over Gigabit Ethernet connections, obtained from at least two different upstream providers with the ability to automatically switch between providers in the event one connection is down. Pathway’s data centre is equipped with UPS Power and Diesel Generator for the use of Users with co-located servers.

Pathway will guarantee 99.983% network availability, on an annual basis, for its server co-location service. Scheduled maintenance periods are excluded from this guarantee. Pathway agrees to provide a minimum of 24 hours’ notice by e-mail before commencing any maintenance work that may affect co-located servers and shall inform the User when maintenance is complete. Network Availability shall be interpreted as Internet connectivity and Electrical Power up to, and not beyond, the Pathway-provided Ethernet Jack(s) and Power Outlet(s) in the Pathway provided co-location cabinet. Down-time shall be interpreted as Pathway’s failure to deliver Network Availability to the User, except during announced maintenance periods.

In the event that down time occurs, the User will need to contact Pathway’s Technical Support Department within two business days of the incident to open a trouble ticket. Pathway will investigate the ticket and should Pathway discover that down time actually occurred, it will inform the User. If the amount of downtime during a year of service exceeds 0.5%, the User will be entitled to a service credit according to the following schedule: for every complete hour of downtime, the User will be entitled to a service credit (applied to their account) equal to one hour’s prorated cabinet fees, up to a maximum of 50% of the cabinet fees charged during the month that the downtime occurred. Should down time persist for five consecutive business days, the User is free to terminate the server co-location agreement without penalty.
Pathway guarantees that its Fibre service will provide access between the Pathway provided router and the Pathway core network at up to subscribed speeds, plus or minus 10%. Pathway cannot guarantee speeds to and from the Internet as the Internet is a global network outside the control of Pathway Communications. Should the client believe that their Pathway Fibre service has failed to adhere to this speed guarantee, they must contact Pathway Technical support immediately to report the problem and be prepared to participate in a remote test of the Fibre speed. Pathway may at its own accord, and at the client’s written request, dispatch a technician to test the speed of the service. Should it be established that Pathway has failed to deliver the service according to the speed guarantee, the User will not be charged for the visit and Pathway will work to restore the Fibre speed to its proper speed. Should the onsite technician establish that Pathway has delivered the service according to the speed guarantee; the User will be charged $100 per hour of onsite technician’s time. The User agrees that a positive speed test by a Pathway technical support agent or Pathway technician is sufficient proof that Pathway Communications has fulfilled this speed guarantee.

All server co-located Users will be assigned a dedicated installation coordinator to facilitate the installation of the server co-location service. Installation will require a dedicated point of contact at the User’s organization to facilitate installation. This User is required to have an adequate understanding of server co-location, TCP/IP, inter-networking and the configuration of the User’s co-located server(s). It is the goal of Pathway to complete co-location server installation within five business days of receipt of a signed and properly executed co-location service agreement. In the event that installation exceeds five business days, Pathway will inform the User of the reason(s) behind the delay and provide an updated completion date.

All Fibre service Users will be assigned a dedicated installation coordinator to facilitate the installation of their dedicated high-speed service. Installation will require a dedicated point of contact at the User’s organization to facilitate installation. This User is required to have an adequate understanding of networking, TCP/IP, and your office LAN setup. For a Fiber fed building, it is the goal of Pathway to complete Fibre service installation within 35 business days of receipt of a signed and properly executed Fiber service agreement. In the event that installation exceeds 35 business days, Pathway will inform the User of the reason(s) behind the delay and provide an updated completion date. For a non-fiber fed building, Pathway is unable to provide a targeted installation date and works with the assumption of 99+ working days.

Secured Access Customers
The User is entitled to visit the data center 24 hours a day, 7 days a week. The User will be given a deactivated access card to the data center. If the user requires access to their server they must contact technical support prior to visiting the data center and inform the technical support representative of the visit. The technical support representative will then activate the access card, which will allow the user to enter the data center once. Pathway will provide access to a VGA compatible monitor, mouse and keyboard, for the duration of the visit, at no charge.

Pathway will provide two free servers reboots to the User each month for which the User must provide specific training to Pathway Staff and for which the User has also provided clear, concise, and complete documentation to Pathway that methodically details step by step procedures to be followed by Pathway. Each request for a reboot must be preceded by a request in writing, addressed to Pathway Technical Support. Extra reboots are subject to a $50 fee per reboot. Unused reboots cannot be carried over to following months.

All secure co-location clients will be provided with private space for their co-located equipment. Secure co-location clients are free to co-locate as much equipment as their cabinet space permits and they will be furnished with a single key to their co-location cabinet. Cabinet keys remain the property of Pathway at all times and must be returned upon request. Lost keys will be subject to a $150 replacement charge. Shared co-location clients will be provided with space for one server in a locked cabinet shared with other co-located servers. In order to preserve the physical security of shared co-located clients, such Users will not be provided with a key to the shared co-location cabinet.

The undersigned User (the “User” or “You”) hereby agrees with 1429481 Ontario Inc. o/a Pathway Communications, 95 Apple Creek Blvd, Markham, ON L3R 1C7, Ontario, and its officers, directors and employees (collectively referred to as “Pathway Communications” or “Pathway”) that in consideration of Pathway opening an account (the “Account”) for the User to provide Internet access or Web or related Internet or network Services through Pathway’s facilities (the “Services”), the User agrees that use of the Services is subject to all of the following terms and conditions which are subject to the terms of the Services package (the “Plan”) chosen by the User (the “Agreement”).

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 User name 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. 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 Internet access from any upstream provider 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 accuracy, safety or quality of the Services with the exception of those outlined in the service level agreement. 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. 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 Plan year will end 365 days after the Plan commences. The set-up fee and first month’s service charges are payable in advance and are required before your service can commence. 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 prepaid services before the end of the contract term. If Pathway is unable to deliver, or terminates, a server co-location manage service(s) (ie: SystemAlert or SecurePlus), the User will remain obligated for the remaining server co-location services, including but not limited to: Cabinet fees, traffic charges, bandwidth charges, or IP fees, under the terms of this agreement.

5. 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 set up 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.

6. Pathway may, with 15 days 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 with 30 days written notice to the User as long as the User’s account is paid in full. Should the User’s account be in default, Pathway may terminate this Agreement for any reason without notice to the User. 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.

7. 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.

8. Each of the services is provided “as is” and “as available,” without warranty of any kind, except those provided in the service level agreement. Pathway does not warrant 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.

9. Force Majeure. Neither party is liable for failure or delay in performance and the service level agreement shall be considered inapplicable 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.

10. 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. Clients may not downgrade rack space. Pathway Communications will agree to provide technical service to the User only for issues directly related to providing the contracted service and not, but not limited to: hardware, software, project, deployment, procurement, expansion, financial, configuration issues.

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