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21-016 TPX Communications, Service Agreement2/1/2021 Quote: 387924 / City of Cupertino CA - Dash 1/17 Quote/Order ID: 387924 Service Agreement CUPERTINO, CITY OF TPx Communications will provide Customer with the specified type and amount of Services at the rates, and terms and conditions listed below and on the Rate Schedule(s) that follow, and Customer shall accept and pay for Services under the Terms and Conditions to which Customer agreed on the Telecommunications Account Agreement (TAA)/Master Service Agreement (MSA) and any related Addendums that follow that govern this Service Agreement, including any changes to Total Monthly Recurring Charges up to five percent (5%) and/or Total Non-Recurring Charges up to five percent (5%) for Services and Equipment specified on this Service Agreement. For any Access, MSx, and/or UCx Service listed below that is being added to Services currently provided to Customer at the below referenced Service Location, a new Service Term (as provided in the Term Length below) shall apply to any such Service. Federal, State and Local Taxes and Other Charges will be applied in accordance with the definitions stated at www.tpx.com/rates. The term for service(s) being ordered is 36 months. ("Term") Customer Requested Due Date: 1/29/2021 RS ID Title Address Non- Recurring Recurring 714139 10555 MARY AVE # 1, CUPERTINO CA 10555 Mary Ave # 1, Cupertino, CA 95014-1322 $655.00 $778.40 714140 10300 TORRE AVE # 1, CUPERTINO CA 10300 Torre Ave # 1, Cupertino, CA 95014-3202 $655.00 $715.15 Sub Totals $1,310.00 $1,493.55 Installment Payment Amount of Non-Recurring charges included in Installment Payments (36 months)($1,310.00) Estimated Monthly Installment Payments (includes simple interest with a rate of 6%, applied annually)$39.84 Total Non-Recurring Charges $0.00 Total Monthly Recurring Charges $1,533.39 Equipment Addendum - Single Payment Purchase, Rental and/or Customer Provided Equipment set for at www.tpx.com/ Equipment-Addendum.pdf MSx Service Addendum set forth at www.tpx.com/MSx-Service.pdf "TPx Communications (“Software Provider”) agrees to furnish City with certificates of insurance showing the type, amount, class of operations covered, effective dates, and dates of expiration of insurance coverage in compliance with the requirements listed in Exhibit B. Software Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement.” Agreed by: Customer Signature Date Customer Name (Print) Title Sales Representative Name Phone Agreed by: Authorized TPx Representative Signature Date v052920 Kirsten Squarcia, City of Cupertino City Clerk Heather Minner, City of Cupertino City AttorneyDate Tonica Francis 925-627-7410 Bill Mitchell CTO Tonica Francis Feb 2, 2021 Heather M. Minner Feb 8, 2021 Feb 8, 2021 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 2/17 Rate Schedule #714139 Quote ID: 387924 10555 MARY AVE # 1, CUPERTINO CA 2/1/2021 CUPERTINO, CITY OF Good through:2/28/2021 Address:10555 Mary Ave # 1, Cupertino, CA 95014-1322 The term for Service(s) being ordered is 36 months ("Term"). MSx WAN (Install) PQE Code: 334580 Description Qty Each Usage Type NRC MRC MSx WAN Optimum 1 $0.00 -MSx -$0.00 Multi Services Router 50 1 $655.00 -xNet $655.00 - Inbound Internet Failover - Block of 4 (1 usable) 1 $10.00 -MSx -$10.00 Inbound Internet Failover - Non Recurring Charge 1 $50.00 -xNet $50.00 - Non-Standard Discount 1 ($50.00)-xNet ($50.00)- MSx WAN - Optimum 50M 1 $185.00 -MSx -$185.00 MSR - Install Included with Voice/Data 1 $250.00 -MSx $250.00 - Non-Standard Discount 1 ($250.00)-MSx ($250.00)- SmartVoice - Related Voice Service 1 $0.00 -MSx -$0.00 TPx Provided DIA 1 $0.00 -MSx -$0.00 $655.00 $195.00 UCx SmartVoice (Install)Description Qty Each Usage Type NRC MRC Abbreviated Dialing 1 $0.00 -xNet -$0.00 Call Paths - SmartVoice 20 $16.00 -xNet -$320.00 Non-Standard Discount 20 ($4.00)-xNet -($80.00) SIP SmartVoice 1 $0.00 -xNet -$0.00 TPx Voice & Data Circuit 1 $0.00 -xNet -$0.00 Tier Z Equipment 1 $0.00 -xNet -$0.00 Caller ID (Inbound - Name & Number)1 $0.00 -xNet -$0.00 Calling Line ID Delivery Blocking or Un-Blocking per Call 1 $0.00 -xNet -$0.00 DIDs 140 $0.15 -xNet -$21.00 DIDs - Setup Fee 140 $1.00 -xNet $140.00 - Non-Standard Discount 140 ($1.00)-xNet ($140.00)- End User Connection Charge (EUCC)20 $2.37 -xNet -$47.40 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 3/17 Enterprise Trunking 1 $50.00 -xNet -$50.00 Enterprise Trunking - Setup Charge 1 $150.00 -xNet $150.00 - Non-Standard Discount 1 ($150.00)-xNet ($150.00)- Free Directory Assistance Listing 1 $0.00 -xNet -$0.00 G.711 Codec 1 $0.00 -xNet -$0.00 LD Usage 1 $0.0290 $0.0290 --- Outbound Calling Line ID (Name & Number)1 $0.00 -xNet -$0.00 UCx SmartVoice Usage Bundle -- 2,500 Minutes Domestic Outbound Usage Included 1 $0.00 -xNet -$0.00 $0.00 $358.40 Internet Services - HSIA (Install)Description Qty Each Usage Type NRC MRC HSIA 45 x 6 Mbps (ICB Code: JI_CD)1 $100.00 -xNet -$100.00 $0.00 $100.00 Internet Services - HSIA (Install)Description Qty Each Usage Type NRC MRC HSIA 35 x 5 Mbps (ICB Code: YD_CD)1 $125.00 -xNet -$125.00 $0.00 $125.00 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 4/17 Rate Schedule #714140 Quote ID: 387924 10300 TORRE AVE # 1, CUPERTINO CA 2/1/2021 CUPERTINO, CITY OF Good through:2/28/2021 Address:10300 Torre Ave # 1, Cupertino, CA 95014-3202 The term for Service(s) being ordered is 36 months ("Term"). UCx SmartVoice (Install)Description Qty Each Usage Type NRC MRC Abbreviated Dialing 1 $0.00 -xNet -$0.00 Call Paths - SmartVoice 20 $16.00 -xNet -$320.00 Non-Standard Discount 20 ($4.00)-xNet -($80.00) SIP SmartVoice 1 $0.00 -xNet -$0.00 TPx Voice & Data Circuit 1 $0.00 -xNet -$0.00 Tier Z Equipment 1 $0.00 -xNet -$0.00 Caller ID (Inbound - Name & Number)1 $0.00 -xNet -$0.00 Calling Line ID Delivery Blocking or Un-Blocking per Call 1 $0.00 -xNet -$0.00 DIDs 385 $0.15 -xNet -$57.75 DIDs - Setup Fee 385 $1.00 -xNet $385.00 - Non-Standard Discount 385 ($1.00)-xNet ($385.00)- End User Connection Charge (EUCC)20 $2.37 -xNet -$47.40 Enterprise Trunking 1 $50.00 -xNet -$50.00 Enterprise Trunking - Setup Charge 1 $150.00 -xNet $150.00 - Non-Standard Discount 1 ($150.00)-xNet ($150.00)- Free Directory Assistance Listing 1 $0.00 -xNet -$0.00 G.711 Codec 1 $0.00 -xNet -$0.00 LD Usage 1 $0.0290 $0.0290 --- Outbound Calling Line ID (Name & Number)1 $0.00 -xNet -$0.00 UCx SmartVoice Usage Bundle -- 2,500 Minutes Domestic Outbound Usage Included 1 $0.00 -xNet -$0.00 $0.00 $395.15 MSx WAN (Install) PQE Code: 334577 Description Qty Each Usage Type NRC MRC MSx WAN Optimum 1 $0.00 -MSx -$0.00 Multi Services Router 50 1 $655.00 -xNet $655.00 - Inbound Internet Failover - Block of 4 (1 usable) 1 $10.00 -MSx -$10.00 Inbound Internet 1 $50.00 -xNet $50.00 - 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 5/17 Failover - Non Recurring Charge Non-Standard Discount 1 ($50.00)-xNet ($50.00)- MSx WAN - Optimum 50M 1 $185.00 -MSx -$185.00 MSR - Install Included with Voice/Data 1 $250.00 -MSx $250.00 - Non-Standard Discount 1 ($250.00)-MSx ($250.00)- SmartVoice - Related Voice Service 1 $0.00 -MSx -$0.00 TPx Provided DIA 1 $0.00 -MSx -$0.00 HSIA 1 $0.00 -MSx -$0.00 $655.00 $195.00 Internet Services - HSIA (Install)Description Qty Each Usage Type NRC MRC HSIA 35 x 5 Mbps (ICB Code: YD_CD)1 $125.00 -xNet -$125.00 $0.00 $125.00 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 6/17 INSTALLMENT PAYMENT DETAILS Charge Description Total Monthly Amount Term Multi Services Router 50 $19.92 36 Multi Services Router 50 $19.92 36 Total of Monthly Payment Amounts $39.84 Total of installment payments will be different from the NRC cash price. NRCS NOT INCLUDED IN THE INSTALLMENT PAYMENT PLAN Charge Description Price Total of opted-out NRC Amounts $0.00 Currently there are no opted-out NRCs. 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 7/17 Master Service Agreement Must include Service Agreement This Master Service Agreement (“Master Service Agreement”) is made by and between U.S. TelePacific Corp. d/b/a TPx Communications and/or its affiliated companies (“TPx”), and the Customer described below (“Customer”). Section 1 Customer Information CUPERTINO, CITY OF Company Legal Name (Individual if Sole Proprietorship) 10555 Mary Ave # 1 Cupertino, CA 95014 Billing Address Section 2 Acceptance The parties have agreed to the Terms and Conditions Attachment and each addendum identified and linked below (each an “Addendum” and collectively the “Addenda”). Each reference to an “Addendum” includes all attachments, exhibits, and schedules incorporated into such Addendum. The Master Service Agreement and all Addenda (whether incorporated herein as of the effective date of this Master Service Agreement or thereafter) are referred to as the “Agreement”. The Agreement also includes one or more Service Agreements entered into by the Customer and TPx. “Service Agreement” means a service agreement entered into between TPx and Customer that incorporates by reference this Master Service Agreement and specifies services and products to be provided by TPx pursuant to this Master Service Agreement, the Terms and Conditions Attachment and the Addenda applicable to such Services. The Service Agreement will specify the charges to the services and products provided thereunder, the initial term of the Service Agreement, service location(s) and other information applicable only to the Services provided pursuant to such Service Agreement. BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREED TO THE FOLLOWING ON THE DATE ENTERED BY YOU BELOW: TPx Terms and Conditions set forth at www.tpx.com/terms Service Level Agreements (SLA) set forth at www.tpx.com/sla Equipment Addendum - Single Payment Purchase, Rental and/or Customer Provided Equipment set for at www.tpx.com/Equipment- Addendum.pdf MSx Service Addendum set forth at www.tpx.com/MSx-Service.pdf ` Additionally by signing below, the person signing on behalf of Customer (i) personally represents and warrants to TPx that he or she has the authority and power to sign on behalf of Customer and bind Customer to this Agreement, including the Addenda incorporated by reference below, (ii) consents to receiving electronic communications from TPx via the email address provided in Section 1 of this Agreement and (iii) acknowledges that he or she has reviewed and agreed to each Addendum hereto. THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION WHICH REQUIRES THE BINDING ARBITRATION OF DISPUTES AND WAIVES RIGHTS TO JURY TRIALS AND CLASS ACTIONS. This Agreement will become a binding contract upon execution by Customer and TPx. ELECTRONIC CONTRACTING AND SIGNATURE ACKNOWLEDGMENT. To the extent that Customer executes this Agreement electronically, Customer agrees that (i) the Agreement (including all Addenda) is an electronic contract executed by Customer using Customer’s electronic signature, (ii) Customer’s electronic signature signifies Customer’s intent to enter into the Agreement (including all Addenda) and that the Agreement (including all Addenda) be legally valid and enforceable in accordance with its terms to the same extent as if Customer had executed the Agreement using its written signature and (iii) the authoritative copy of the Agreement (“Authoritative Copy”) shall be that electronic copy that resides in a document management system designated by TPx for the storage of authoritative copies of electronic records, which shall be deemed held by TPx in the ordinary course of business. Notwithstanding the foregoing, if the Authoritative Copy is converted by printing a paper copy which is marked by TPx as the original (the “Paper Contract”), then Customer acknowledges and agrees that (1) Customer’s signing of the Agreement with Customer’s electronic signature also constitutes issuance and delivery of such Paper Contract, (2) Customer’s electronic signature associated with the Agreement, when affixed to the Paper Contract, constitutes Customer’s 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 8/17 legally valid and binding signature on the Paper Contract and (3) subsequent to such conversion, Customer’s obligations will be evidenced by the Paper Contract alone. X Agreed by: Customer Signature Date Customer Name (Print) Title Sales Representative Name Phone v052920 Tonica Francis 925-627-7410 Feb 8, 2021 Feb 8, 2021 Bill Mitchell 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 9/17 Customer Contact Authority TPx Communications has an obligation, and Customer has a right, under federal or state law to protect the confidentiality of your Customer Proprietary Network Information (CPNI). CPNI includes information relating to the quantity, technical configuration, type, destination, location and amount of use of the services Customer purchases from TPx. You can help prevent unauthorized access to that information by indicating below the parties authorized to access that information. Authority Roles Primary Account Authority / Authorized Signee: This user will have full access to all CPNI data related to network configuration and usage. This user will have full administrative access for the account which includes managing account settings, viewing invoices, making payments, initiating new orders, providing price change approvals, and overseeing trouble reports. Only this user will be authorized to sign any Service Agreements or Equipment Addendums. Only this user will be authorized to add "secondary" users to the authorized list. Alternate Primary Account Authority: This user will have full access to all CPNI data related to network configuration and usage. This user will have partial administrative access for the account which includes managing account settings, making payments, initiating new orders, providing price change approvals, and overseeing trouble reports. Agent Contact: This user will have access to CPNI data and for the account in accordance with their Authority Level which is to be determined by the Primary Account Authority / Authorized Signee. Voice Vendor: This user will have access to CPNI data and for the account in accordance with their Authority Level which is to be determined by the Primary Account Authority / Authorized Signee. Data Vendor: This user will have access to CPNI data and for the account in accordance with their Authority Level which is to be determined by the Primary Account Authority / Authorized Signee. Authority Levels R/W/A (Read/Write/All) Grants full authority to CPNI usage and network configuration data. Permits authority to request account information, view and remit payments, place and oversee orders, and initiate & manage trouble reports. R/W/B (Read/Write/Bill) Grants authority to CPNI network configuration data in support of resolving billing related issues. Permits authority to view invoices, request invoice related changes on the account such as the billing address, and to view and remit payments. R/W/O (Read/Write/Orders) Grants authority to CPNI network configuration data in support of order implementation. Permits authority to oversee all open orders against the account and to initiate orders against the account for existing service changes or ancillary service additions R/W/T (Read/Trouble) Grants authority to CPNI network configuration data in support of resolving trouble on the account. Permits authority to report and look after trouble related to existing services on the account. P A A/ A S ¨ Do not send marketing emails Name Title Phone Cell Email Authority Level: RWA A P A A ¨ Do not send marketing emails Name Title Phone Cell Email Authority Level: RWA A C N Name Title Phone Cell Email Duration: ¨This installation only ¨ Term of contract Authority Level: ¨ RWA ¨ RWB ¨¨RWO ¨RWT V V C N Name Title Phone Cell Email Duration: ¨ This installation only ¨ Term of contract Authority Level: ¨RWA ¨ RWB ¨¨RWO ¨RWT D V C N Name Title Phone Cell Email 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 10/17 Duration: ¨This installation only ¨ Term of contract Authority Level: ¨RWA ¨ RWB ¨¨RWO ¨RWT “I grant permission to TPx to provide access to CPNI to the authorized account contacts listed above subject to the designated authority level.” CUPERTINO, CITY OF Company Legal Name Authorized Signature: Date: Printed Name: Title: v052820 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 11/17 Equipment Addendum - Installment Payment Purchase This Equipment Addendum (this “Equipment Addendum”) amends and modifies the Telecommunications Account Agreement (TAA) or Master Service Agreement (MSA) (referred to herein, as so amended and modified, as the “Agreement”) between U.S. TelePacific Corp. d/b/a TPx Communications and/or its affiliated companies (“TPx”) and Customer. This Equipment Addendum governs devices supplied by TPx (devices collectively referred to herein as “Equipment”), and which said Equipment is used in conjunction with any of TPx’s Services and is purchased by Customer from TPx via installment payment purchase. 1. EQUIPMENT ACQUISITION Devices used in conjunction with any of TPx’s Services (referred to herein as “Equipment”) may be purchased by Customer from TPx via installment payment purchase option. Any Equipment governed by this Equipment Addendum will be described on the schedule substantially in the form of Exhibit I hereto delivered from time to time at the time of purchase (or other provisioning) thereof by TPx to Customer and authorized or otherwise confirmed by Customer (each, a “Delivered Equipment Schedule”). The terms of each Delivered Equipment Schedule shall be, and hereby are, fully incorporated by reference herein. 2. INSTALLMENT PAYMENT PURCHASED EQUIPMENT a. Installment payments will be added to each monthly invoice delivered to Customer under Section 2(e) of the Terms and Conditions Attachment to the Agreement, for the duration of the Initial Service Term, spread evenly over the total number of months contracted, in the amount(s) to be shown on the related Delivered Equipment Schedule(s). b. If, prior to the end of the Service Term, Services associated with any Equipment purchased via this Equipment Addendum are terminated for any reason, Customer shall remain liable for all remaining installment payments for the affected Equipment. c. Customer’s obligations to make payments under any installment purchase of Equipment are separate and independent from Customer’s obligations to make payments on the Services. d. Customer agrees that the right of TPx to receive installment payments relating to the Equipment purchased via this Equipment Addendum may be sold, transferred or otherwise assigned by TPx without consent. e. Credit Allowances. Credits granted by TPx for the interruption of services may not be applied to Equipment purchases or payments due or to become due under the Agreement (including this Equipment Addendum). f. Certain Waivers. Notwithstanding any provision contained in the Agreement (including this Equipment Addendum) to the contrary, it is agreed by the parties that: i. Customer agrees not to assert any claim, set-off, recoupment, withholding or defense against TPx, any of its affiliates or its assignees or designees, that Customer may have against TPx, its affiliates or its assignees or designees, as applicable, in connection with the Agreement or any other agreement pursuant to which TPx (or any of its affiliates or designees) provides services to Customer or against the manufacturer of any equipment obtained under this Equipment Addendum; ii. any assignee to which TPx shall assign its right to payments hereunder shall not have any obligation or responsibility to Customer pursuant to the Agreement (including this Equipment Addendum), and any such payment assignment shall not relieve TPx of any of its obligations hereunder and thereunder; iii. CUSTOMER AGREES THAT ITS OBLIGATION TO MAKE ALL PAYMENTS WHEN DUE IN ACCORDANCE WITH THE AGREEMENT (INCLUDING THIS ADDENDUM) SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER; iv. where Customer does not make any payments under the Agreement (including this Equipment Addendum) pursuant to any of the foregoing conditions, TPx, as service provider pursuant to the Agreement, shall have the right to terminate Customer’s right to use and receive the software and any maintenance pursuant to the Agreement; and v. any affiliates, assignees or designees of TPx, and any collateral agent, administrative agent, or subsequent receivables purchaser is an intended third party beneficiary of the Agreement (including this Equipment Addendum) and therefore entitled to enforce the terms of the Agreement (including this Equipment Addendum) directly against Customer. Customer agrees that notwithstanding anything in the Agreement (including this Equipment Addendum), TPx and its assignees may at any time and without notice further assign the payments owing hereunder, in whole or in part. g. Ownership of Equipment. As the owner of the Equipment, Customer is the beneficiary of any applicable warranty and is responsible for all taxes, insurance and risk of loss related to the Equipment. h. Acceptance. Customer acknowledges acceptance of the Equipment upon delivery. 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 12/17 i. Equipment Purchase Cancellation. Customer may cancel an Equipment purchase within twenty-four (24) hours of signing this Equipment Addendum. Notification of order cancellation must be emailed to billing@tpx.com. Cancellation of orders after twenty- four (24) hours will result in an order cancellation charge equal to 10% of the total amount for Equipment purchased. j. Shipping Charges and Taxes. Customer is responsible for all delivery or shipping charges, installation charges, and applicable taxes. k. Warranty on Installment Purchase Payment Equipment. i. Maintenance of Equipment. TPx will provide maintenance and support for Equipment purchased from TPx, including software updates and patches, for as long as Customer maintains its associated Service with TPx. ii. TPx Replacement Obligation. For Equipment purchased from TPx, TPx will replace any failed devices for as long as Customer maintains its associated Service, Customer’s account remains in good standing, TPx has reasonable access to replacement Equipment, and Customer returns the Equipment in accordance with the terms stated within the manufacturer warranty; provided that TPx and Customer agree that Customer’s obligations to make payments on the Services, on the one hand, and Customer’s obligations to make payments on the Equipment purchased through an installment purchase option, on the other hand, are separate and distinct obligations of Customer and are subject to Section 2(d) of this Equipment Addendum. The replacement item may be a new or reconditioned device of equal or comparable value. The TPx replacement obligation starts when Equipment is delivered to Customer, lasts for the duration Customer maintains an associated Service, and overlaps the manufacturer's warranty. It covers accidental damage, liquid damage, or any Equipment defect. Associated shipping and/or service order fees may apply. (A) Exclusions. Lost or stolen Equipment, or Equipment that appears to be damaged by intent, gross negligence or willful or reckless treatment shall not be covered under any TPx’s replacement obligation. Additionally, phone accessories and headsets shall not be covered under any TPx’s replacement obligation. MSx service(s) equipment replacement obligation terminates when the manufacturer no longer supports the equipment. (B) TPx’s Sole Obligation. TPx’s sole obligation with respect to Equipment is to repair the Equipment, deliver to Customer an equivalent replacement Equipment, or if neither of the two foregoing options is reasonably available, TPx may, in its sole discretion, refund to Customer the purchase price paid for the Equipment. Replacement Equipment may be new or reconditioned. The foregoing is Customer’s sole remedy, and TPx’s sole obligation, with regard to defective Equipment. iii. Return / Exchange Policy for Purchased Equipment. (A) Returns and Exchanges. Should it be necessary to return Equipment, Customer may return it for a refund or exchange, excluding any shipping charges and subject to a restocking fee of twenty-five ($25.00) dollars per unit, within thirty (30) days after delivery. Defective Equipment may be repaired or exchanged for the same or equivalent model only, at TPx's discretion. All returned Equipment must be unregistered, in complete original manufacturer's packaging, same condition as sold, with all accessories, literature, instructions, documentation and blank warranty cards. (B) Exclusions. No returns will be allowed on: phone accessories and headsets, network cabling, original manufacturer computers, computer products, or software once opened. l. If Customer fails to approve or reject the equipment and pricing information on the Delivered Equipment Schedule after three email requests, TPx will remove the Installment Payment option for the equipment listed on the Delivered Equipment Schedule, and the total equipment cost will be due immediately from Customer. 3. HARDWARE CLAIMS POLICY FOR ALL EQUIPMENT PURCHASED FROM TPX Customer must inspect the Equipment carefully as to content and conditions upon receipt. All claims for damaged or missing items must be reported to TPx within two (2) business days of receipt of Equipment. In the event a package arrives damaged, it is the responsibility of Customer to contact TPx to inspect the package to assure full refund or replacement. All packaging must be retained until the problem is resolved. 4. LIMITATION OF LIABILITY WITHOUT LIMITING ANY LIMITATION OF LIABILITY IN SUBSECTION (d) OF SECTION 5 OF THE TERMS AND CONDITIONS ATTACHMENT TO THE AGREEMENT, TPX LIABILITY IS LIMITED TO THE MONETARY VALUE OF THE EQUIPMENT PURCHASED. SCHEDULE 1 Section A Customer Information 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 13/17 CUPERTINO, CITY OF Company Legal Name (Individual if Sole Proprietorship) Doing Business As (DBA) Legal Composition: [ ] Corporation [ ] General Partnership [ ] LLP [ ] LLC [ ] Sole Proprietorship State Organized 10555 Mary Ave # 1 Cupertino, CA 95014 Billing Address Section B Acceptance By signing below, the person signing on behalf of Customer personally represents and warrants to TPx that he or she has the authority and power to sign on behalf of Customer and bind Customer to the Agreement (including this Equipment Addendum). THE AGREEMENT INCLUDES AN ARBITRATION PROVISION WHICH REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES AND WAIVES CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. The Agreement (including this Equipment Addendum) shall become a binding contract upon execution by Customer and acceptance by TPx. ELECTRONIC CONTRACTING AND SIGNATURE ACKNOWLEDGMENT. To the extent that Customer executes the Agreement and/or the Equipment Addendum electronically, Customer agrees that (i) the Agreement (including this Equipment Addendum, as supplemented by each Delivered Equipment Schedule) is an electronic contract executed by Customer using Customer’s electronic signature, (ii) Customer’s electronic signature signifies Customer’s intent to enter into the Agreement (including this Equipment Addendum, as supplemented by each Delivered Equipment Schedule) and that the Agreement (including this Equipment Addendum, as supplemented by each Delivered Equipment Schedule) be legally valid and enforceable in accordance with its terms to the same extent as if Customer had executed the Agreement (including this Equipment Addendum) using its written signature and (iii) the authoritative copy of the Agreement (including this Equipment Addendum, as supplemented by each Delivered Equipment Schedule) (“Authoritative Copy”) shall be that electronic copy that resides in a document management system designated by TPx for the storage of authoritative copies of electronic records, which shall be deemed held by TPx in the ordinary course of business. Notwithstanding the foregoing, if the Authoritative Copy is converted by printing a paper copy which is marked by TPx as the original (the “Paper Contract”), then Customer acknowledges and agrees that (1) Customer’s signing of the Agreement (including this Equipment Addendum) with Customer’s electronic signature also constitutes issuance and delivery of such Paper Contract, (2) Customer’s electronic signature associated with the Agreement (including this Equipment Addendum, as supplemented by each Delivered Equipment Schedule), when affixed to the Paper Contract, constitutes Customer’s legally valid and binding signature on the Paper Contract and (3) subsequent to such conversion, Customer’s obligations will be evidenced by the Paper Contract alone. X Agreed by: Customer Signature Date Customer Name (Print) Title Sales Representative Name Phone Example of EXHIBIT I [FORM OF] DELIVERED EQUIPMENT SCHEDULE To be completed upon delivery of equipment Reference is made to the Equipment Addendum (the “Equipment Addendum”) relating to the Telecommunications Account Agreement (TAA) or Master Service Agreement (MSA) (referred to herein, as so amended and modified, as the “Agreement”) between U.S. TelePacific Corp. d/b/a TPx Communications and/or its affiliated companies (“TPx”) and [CUSTOMER] (“Customer”), which Equipment Addendum was executed and accepted by Customer on [DATE]. This schedule (this “Schedule”) is a “Delivered Equipment Schedule” contemplated by the Equipment Addendum and shall be part of and subject to the Equipment Addendum for all purposes automatically and without further action by any person upon TPx’s delivery of 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 14/17 this Schedule together with the Equipment described below and Customer’s authorization or other confirmation hereof in electronic form or otherwise. TPx has provided Customer with the specified type and amount of Equipment at the prices and terms and conditions listed below, and Customer shall accept and pay for the Equipment under the Equipment Addendum as supplemented by this Schedule, the Agreement and any related Addendums that follow that govern this Schedule, the Equipment Addendum and the related Telecommunications Account Agreement (TAA)/Master Service Agreement (MSA). Federal, State and Local Taxes and Other Charges will be applied in accordance with the definitions stated at www.tpx.com/rates. The following Equipment will be purchased by Customer from TPx via installment purchase (as contemplated by clause (ii) under Section 1 of the Equipment Addendum): Quantity Item description Price per unit Total purchase amount/price Number of installment payments Amount of monthly payment (*) (*) As contemplated by Section 2(a) of the Equipment Addendum, installment payments will be added to each monthly invoice delivered to Customer under Section 2(e) of the Terms and Conditions Attachment to the Agreement (the “Terms and Conditions”). As contemplated by Section 2(g) of the Terms and Conditions, each monthly invoice shall be due and payable upon presentation, and shall become past due after the Pay By Date printed on the invoice. v091420 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 15/17 Letter of Agency (LOA) Only required when porting Local and/or Long Distance Current Carrier(s) Company Legal Name (Customer) CUPERTINO, CITY OF Service Address (Street, City, State, Zip) Billing Address (Street, City, State, Zip) 10555 Mary Ave # 1 Cupertino, CA 95014 Billing Telephone Numbers [ ] Customer Service Records To: Current Carrier(s) Listed Above Subject: The Customer identified above hereby authorizes TPx Communications to act as its agent in dealing with local companies listed above for porting telephone numbers or changing carriers. [ ] Service Change [ ] New Service I authorize TPx to act as our agent with respect to the telephone number(s) listed above to (1) change our telecommunications carrier fromcurrent carrier(s) or (2) initiate new service. Local Service, IntraLata (local toll) Carrier , InterLata (long distance) Carrier or I want to retain my existing LD carrier on some or all of my telephone numbers Specify Intra and InterLata PIC for each telephone number(s) provided to TPx I understand that only one telecommunications carrier may be designated as my primary interexchange carrier for any one telephonenumber for each (a) IntraLATA Toll and (b) InterLATA Long Distance services. I also understand that if I select no primary interexchangecarrier (NO PIC), I will be unable to make IntraLATA Toll and/or InterLATA long distance calls except by using casual dialing. I understandthat any change in my primary carrier selection may involve a charge. Contact Name (print) Title Customer Signature Date v091417 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 16/17 FlexCheck Coupon Expiration Date: 90 days after Statement / Date printed on 1 invoice Pay to the order of: CUPERTINO, CITY OF Rebate amount: $778.4 Credits paid in 4 equal installments Service location: 10555 Mary Ave # 1, Cupertino, CA 95014-1322 Customer signature: _____________________ Date: _____________________ Coupon ID: 387924-714139 Redemption Instructions 1. The FlexCheck Coupon is not available for redemption until after installation of services. Once installation of services is complete, submit the signed and dated FlexCheck Coupon by mail or email to: FlexCheck Processing Center 3300 N. Cimarron Road or Fax 866-891-2088 or CustomerCare@TPx.com Las Vegas, NV 89129 2. The FlexCheck Coupon must be submitted on or before the expiration date. Late submission is not accepted. 3. Processing center is not authorized to change the program terms. FlexCheck is credited in four (4) installments. No exception is accepted. Important notes Rebate amount will be applied to the next four invoices (25% on each invoice) after the date a properly completed Flexcheck Coupon signed by the Customer is received by TPx before expiration. Rebate coupons shall have no value except for redemption value in the Program and may not be redeemed for cash. v040120 st 2/1/2021 Quote: 387924 / City of Cupertino CA - Dash https://dash.tpx.com/ribeye/service/file?id=1362771&deleteAfterServing=1&inline=1 17/17 FlexCheck Coupon Expiration Date: 90 days after Statement / Date printed on 1 invoice Pay to the order of: CUPERTINO, CITY OF Rebate amount: $715.15 Credits paid in 4 equal installments Service location: 10300 Torre Ave # 1, Cupertino, CA 95014-3202 Customer signature: _____________________ Date: _____________________ Coupon ID: 387924-714140 Redemption Instructions 1. The FlexCheck Coupon is not available for redemption until after installation of services. Once installation of services is complete, submit the signed and dated FlexCheck Coupon by mail or email to: FlexCheck Processing Center 3300 N. Cimarron Road or Fax 866-891-2088 or CustomerCare@TPx.com Las Vegas, NV 89129 2. The FlexCheck Coupon must be submitted on or before the expiration date. Late submission is not accepted. 3. Processing center is not authorized to change the program terms. FlexCheck is credited in four (4) installments. No exception is accepted. Important notes Rebate amount will be applied to the next four invoices (25% on each invoice) after the date a properly completed Flexcheck Coupon signed by the Customer is received by TPx before expiration. Rebate coupons shall have no value except for redemption value in the Program and may not be redeemed for cash. v040120 st Terms and Conditions to the Agreement 1 v100120 IMPORTANT: SECTION 8 OF THESE TERMS AND CONDITIONS INCLUDES A PROVISION REGARDING BINDING ARBITRATION AND A WAIVER OF CUSTOMER’S RIGHT TO JURY TRIALS AND CLASS ACTIONS. 1. General (a) Incorporation of TAA, MSA or Service Agreement. These Terms and Conditions (these “Terms and Conditions”) to the Telecommunications Account Agreement (“TAA”),Master Service Agreement (“MSA”) or Service Agreement (referred to herein, as so amended and modified, as the “Agreement”) are part of the Agreement between Customer and U.S. TelePacific Corp. All capitalized terms used but not defined herein will have the meanings given to such terms in the TAA or MSA (as applicable). "TPx" as used in the Agreement means the TPx entity executing the TAA, MSA or Service Agreement and/or its Affiliates. (b) Services. Services are offered to Customer by TPx either under tariffs (i.e., documents which list services, prices and other terms and conditions, referred to herein as “Tariffs”) filed with the Federal Communications Commission and state regulatory agencies having jurisdiction over the Services (“Tariffed Services”), or on a non- Tariffed basis (“Non-Tariffed Services”). Tariffs are available online at www.tpx.com/tariffs. All services provided under the Agreement are collectively referred to as the “Services.” In the event that the rates and terms in the Agreement conflict at any time with those set forth in TPx’s federal and/or state Tariffs applicable to the Services, the rates and terms of the Tariffs will control. The rates and terms of Tariffed Services may change, subject to the approval of the applicable regulatory agency. If the Tariffs for any Services are cancelled as a result of regulatory action during the term of this Agreement, TPx will publish a revised price list and related terms and conditions for such Services on its website (www.tpx.com/rates) which will become part of the Agreement. In the event that any agreement between the parties is terminated and Tariffed Services are still provided by TPx, applicable Tariff rates and terms will apply to the Tariffed Services provided to Customer. (c) Pass Through of Price Increases. TPx may increase the rates for non-Tariffed Services to pass through any price increases imposed on it or its Affiliate by the providers of the underlying facilities used to provide the Services or, in the case of long distance services, by wholesale providers of such services. “Affiliate" means any entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or under common control with a party, and where the term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or other wise. (d) Revisions. TPx may change the rates and terms applicable to Non-Tariffed Services (“Revisions”) by giving Customer at least thirty (30) days prior written notice. Customer will receive notice of the Revisions at least thirty (30) days prior to the effective date of any change. Such notice will generally be provided in Customer’s monthly invoice. (i) With regard to any such Revisions that are changes to the terms and conditions, Customer will then have thirty (30) days from the date of the invoice to provide TPx with written notice that the Revisions to the changed terms or conditions will have a material adverse effect on Customer’s use of the Service(s). If TPx is able to verify such adverse effect and eliminate the adverse effect, TPx will provide Customer with a written addendum to the Agreement to confirm Customer’s assent to the elimination of the adverse effect on the Services(s). However, if TPx is unable, after making a commercially reasonable effort, to eliminate the Revision’s impact on such Service(s), TPx will notify Customer and Customer may terminate the impacted Service(s) without further obligation to TPx beyond the termination date, including termination charges, if any. If Customer does not notify TPx in writing of Customer’s election to terminate the affected Service(s) for changed terms or conditions within five (5) business days after receipt of written notice of TPx’s inability to eliminate the Revision’s impact, Customer will be deemed to have consented to the Revisions and to a continuation of the Service(s), subject to the Revisions. (ii) With regard to any such Revisions that materially increase the rates applicable to any of the Non-tariffed Services, except for pass-through rate increases, Customer may terminate the affected Service(s) Terms and Conditions to the Agreement 2 v100120 without further obligation beyond the termination date, including termination charges, if any, provided Customer notifies TPx in writing of its election to so terminate the affected Service(s) for such rate increase at least five (5) business days before the effective date of the rate increase. If Customer does not notify TPx in writing of Customer’s election to terminate the affected Service(s) for increase in rates prior at least five (5) business days prior to the effective date of the rate increase, Customer will be deemed to have consented to the Revisions and to a continuation of the Service(s) subject to the Revisions. (iii) If Customer terminates Services pursuant to this Section 1(d), Customer exercising such termination right will be its sole and exclusive remedy for TPx’s failure to provide the terminated Services. (e) Expedite Fee. Under certain conditions, Customer may request that installation of Services be expedited by agreeing to pay a fee (the “Expedite Fee”). No projected date for expedited installation is guaranteed. Payment of the Expedite Fee only earns an advanced priority for installation process and installat ion is not entirely in TPx’s control. No credit or refund of the Expedite Fee will be made for delay of the installation date beyond the projected or requested date. A list of Expedite Fees is available at: www.tpx.com/rates. (f) Additional Increase in Charges. In addition to rate increases associated with Revisions as set forth above, a change in the manner in which TPx delivers Services to Customer may result in an increase in rates for those Services. Also, if a portion of the Services requires third party construction or other infrastructure, additional third party charges may apply. If TPx cannot deliver Services to Customer at the rates it has agreed to pay because of the cost of the technology used or additional third party costs required to deliver the Services, including an acceptable profit margin, TPx will notify Customer in writing before any change in the technology is used and seek Customer’s consent to a change in the rates or additional charge of the affected Service. TPx may delay the installation of any change in technology until Customer has responded to the increased rate or additional charge. If Customer does not notify TPx in writing of Customer’s refusal to consent to the increased rate within five (5) business days after receipt of notice from TPx of such increase, Customer will be deemed to have consented to the increase in rate or additional charge. If Customer objects to such increase or charge within five (5) business days, either party may terminate the affected Service on written notice without further obligation beyond the date of termination, including for termination charges. Customer’s right to terminate will be its sole and exclusive remedy for TPx’s failure to provide the terminated Services. 2. Term, Billing, and Payment (a) Agreement Effective Date. The Agreement is effective when the TAA, MSA or Service Agreement has been signed by Customer and accepted by TPx (the “Agreement Effective Date”), either by execution on behalf of TPx or by TPx commencing the Services delivery process. Thereafter, TPx will begin as soon as practicable the installation, connection and testing of the circuits and/or equipment necessary to provide the initial Services. (b) Agreement Term. The Agreement including these Terms and Conditions will expire immediately upon the expiration or termination of the last Agreement pursuant to which Services are provided under this Agreement; provided, however, that any amounts due under any related equipment addendum (each, an “Equi pment Addendum”) shall remain due and payable by Customer irrespective of any such expiration or termination. (c) Service Term. The initial term of the Services (the “Initial Service Term”) provided under each Agreement thereunder will begin the date TPx provides notice to Customer that the Services are available for its use, unless otherwise provided in the Agreement. After the Initial Service Term, unless otherwise set forth in an Agreement, the applicable Agreement will automatically renew for successive periods of one year each at the rates then in effect for Customer’s Services unless either party notifies the other in writing of non-renewal not less than ninety (90) days before the date of expiration of the then-current Service Term of non-renewal (each a “Service Renewal Term” and together with the Initial Service Term, the “Service Term”). However, the termination of Services will not occur until the later of the end of the then-current Service Term or thirty (30) days after receipt of that notification. If Customer continues to use Service(s) after such date, it will receive and pay for Service(s) under the applicable Agreement on a month-to-month basis. Terms and Conditions to the Agreement 3 v100120 (d) Non-Automatic Renewal Term. Customer may renew Services under an Agreement for a Service Renewal Term prior to the completion of the Initial Service Term (a “Non-Automatic Renewal Term”). The beginning of this Non-Automatic Renewal Term is the date of the first invoice after the renewal of the Service for the Non-Automatic Renewal Term is entered into TPx’s billing system. Customer may order additional Services at Customer’s existing service location(s) under the applicable Agreement. The additional Service(s) will have a Service Term coterminous with the Service Term or Renewal Term of the existing Service(s) at said service location, subject to TPx’s acceptance. Services for additional service locations may also be ordered, subject to TPx’s acceptance, under the applicable Agreement. The Service Term for additional Services ordered for additional service locations will begin the date TPx provides notice to Customer that the Services are available for Customer’s use, will continue in effect for the entire Service Term specified in the Agreement for the additional Services and will automatically renew for successive periods of one (1) year each after the end of the Service Term of the additional Services (each successive period being a Renewal Term for those additional Services), unless terminated as provided in these Terms and Conditions. (e) Billing. (i) TPx will begin invoicing Customer for the Services and other charges after TPx gives Customer notice that the Services are installed and available for Customer’s use and will continue invoicing on a monthly basis until the applicable Services are no longer provided. TPx will bill monthly recurring charges in advance and usage charges after the usage occurs. Customer is responsible for all other charges and government fees and taxes which will be separately listed on each invoice. Notwithstanding the foregoing, each party will be responsible for its own income taxes and employment taxes. The parties will cooperate in good faith to minimize taxes to the extent le gally permissible. Each party will provide to the other party any resale exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other party. TPx may require, in its discretion, that Customer provide a deposit or other assurance of payment before the Services are provided and/or thereafter. Any required deposit will not bear interest unless required by law. If Customer delays acceptance of the Services after receiving notice that Services are available, TPx may, in its sole discretion, begin invoicing Customer for the ordered Services. If Customer continues to delay acceptance of the Services for more than sixty (60) days after the date the Services are available, Customer will have materially breached this Agreement, and TPx will be entitled to terminate this Agreement without further notice and to pursue the remedies in Section 4 of these Terms and Conditions. (ii) TPx will invoice Customer for any equipment purchased or rented by TPx, whether by installment purchase option or otherwise, pursuant to the terms of the related Equipment Addendum. Payments for equipment are separate and independent of any payments owing by Customer for Services. (f) Back-billing. TPx will endeavor to bill Customer for charges on a timely basis. However, unless proscribed by state regulation, Customer will nevertheless be liable for all charges irrespective of any delay in billing, whether due to error, lack of necessary data, negligence or any other reason . No such delay will constitute a basis for a claim of waiver, estoppel or other excuse of Customer’s obligation to pay TPx’s charges, irrespective of the length of the delay. Nothing herein will toll the running of any statute of limitations applicable to such obligations . (g) Payment. Invoices are due and payable upon presentation, and become past due after the Pay By Date printed on the invoice. If Customer has a bona fide dispute with any of the amounts on the invoice (“Disputed Amount”), it will pay all amounts not in dispute by the Pay By Date and provide TPx with a written request for a billing adjustment, together with all supporting documentation, within forty-five (45) days after Customer’s receipt of the invoice or Customer’s right to any billing adjustment will be waived. If TPx agrees to adjust all or a portion of the Disputed Amount, Customer will not be obligated to pay a late payment charge on the adjusted amount . If Customer fails to pay all non-Disputed Amounts on an invoice by the Pay By Date, TPx may impose a late payment charge of 1.5% per month or the maximum rate allowed by law, whichever is less, on the unpaid balance until the amount is paid. TPx may also suspend Customer’s services until all delinquent amounts, including late payment charges, are paid in full. An additional charge will apply to each returned check. Payment must be made in U.S. Dollars. Terms and Conditions to the Agreement 4 v100120 (h) Match Period. If the Service Term for the Services initially to be provided under an applicable Agreement when it is first entered into by the parties is for sixty (60) months or more and the initial Services have been installed for at least twenty-four (24) months, Customer may provide TPx at retention@tpx.com with a bona fide, written quote of a lower monthly charge for a term at least equivalent to the remaining months in the Service Term from a competitive carrier for substantially the same initial Services with the same terms as provided pursuant to the Agreement and all Addenda, and TPx will have thirty (30) days (the “Match Period”) after receipt of the bona fide written quote to match or beat the competitive provider’s offer. If TPx fails to provide the initial Services at the lower rate, Customer may terminate the initial Services without liability for early termination in a notice provided to TPx not less than thirty (30) days after the expiration of the Match Period . Notwithstanding the foregoing, Customer may provide only one such quote under the Agreement. For this Section 2(h) to apply, the quote from the competitive carrier must be for the same service location as initially set forth in the applicable Agreement and for the same initial configuration of Services. 3. Customer’s Obligations (a) Building Access. Customer will obtain all necessary approvals, applicable permits and/or use fees to be attained, if any, for full access by TPx and its subcontractors prior to installation of the Service(s) and while the Service(s) is (are) provided. (b) Responsibility for Message Content. Customer is solely responsible for all content that it makes available on or through the Services. Customer represents and warrants that all such content will not infringe on, or contain any content that infringes on, or otherwise violates any copyright, patent or any other right held by a third-party and that all such content will not violate any applicable law, rule, regulation or industry standard. (c) Use of Services. Customer will not use the Services for any illegal, unlawful, abusive or fraudulent purpose and will use the Services in such a manner as to prevent damage to TPx’s network. Customer’s proper use of the Services includes conforming to all Acceptable Use Policies (“AUP”) that are available on request and are displayed at TPx’s web site at www.tpx.com/acceptable-use-policy. The AUP may be amended from time to time. If TPx materially changes the AUP, it will provide the same right to notification and cancellation as provided in Section 1(d) of these Terms and Conditions. Resale and distribution of all or any portion of the Services is prohibited. (d) Third-Party Obligations. Customer is responsible to pay any third-party vendor charges for third party vendors retained by Customer, such as retaining a vendor for installation of necessary inside wiring. Also, Customer is responsible to arrange for disconnection and payment of charges related to the disconnection of any related services with Customer’s current provider(s). Disconnection of such services may not be delegated to TPx. (e) Customer Local Area Network Responsibilities. Customer agrees to comply with TPx-provided Local Area Network (LAN) guidelines posted at www.tpx.com/support/ and acknowledges that all network configurations as well as hardware and software located at Customer's physical location(s) conforms to the specifications outlined by TPx based on the contracted TPx services. (f) Network Security. Customer is responsible for taking whatever actions it deems necessary to make Customer’s computer and voice network and circuits adequately secure from unauthorized access. Customer acknowledges that TPx only provides telecommunications services and certain equipment to Customer and that TPx is not responsible for the security of Customer’s network and circuits from third parties, or for any damages that may result from any unauthorized access to Customer’s network. Customer will follow the Fraud Guidelines provided at www.tpx.com/fraud-guidelines. Failure to follow the steps provided may result in a greater likelihood that Customer’s network will be exposed to fraud. Customer acknowledges that TPx has recommended that Customer seek independent advice with respect to products, equipment (including configurations) and services available to make Customer’s computer network and circuits more secure from third parties. CUSTOMER FURTHER ACKNOWLEDGES THAT NONE OF TPx’S EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS HAS MADE, AND THEY DO NOT HAVE THE AUTHORITY TO MAKE, ANY REPRESENTATIONS CONCERNING THE SECURITY OF CUSTOMER’S NETWORK OR THE Terms and Conditions to the Agreement 5 v100120 SERVICES, INCLUDING ANY REPRESENTATIONS THAT ARE INCONSISTENT WITH THE STATEMENTS CONTAINED IN THIS SECTION 3(f). (g) Access to Customer Premises, Systems and Data. As required for the performance of the Services, Customer will provide a secure space, network, wiring, electrical power, and environmental conditions suitable for and compatible with TPx’s provision of Service(s). Customer agrees to provide TPx reasonable access (on -site and remote) to existing systems such that monitoring agents and other management tools can be installed as part of the Service(s). Customer will assume insurance responsibility for the cost of its repair or replacement should the equipment be damaged due to negligence, misuse, external forces, power surges, or servicing by non-TPx designated service personnel. Customer consents to TPX accessing and processing all data provided by or on behalf of Customer in connection with the Agreement (including data from customers of Customer) and r epresents that it has obtained any consents required for such access and processing. (h) Customer’s Compliance with Laws. Customer is responsible for the compliance with all laws and regulations applicable to the business of Customer and its Affiliates. Customer will be responsible for (1) identifying such laws and regulations and notifying TPx of any associated impact on TPx or the delivery of the Services ; (2) obtaining the consent or approval of any governmental entity required for the parties’ compliance with any such laws and regulations; and (3) obtaining the consent of any individual required for the parties’ compliance with any such laws and regulations, including any required consent related to the transfer, processing and storage of such individual’s personal data under laws applicable to such individual or the personal data. If requested by Customer, TPx will work in good faith with the Customer to enter into an amendment to this Agreement or modify the provision of the Services to Customer as required to comply with such laws and regulations, in each case at the expense of Customer. In no event will TPx be required to provide Services in violation of any applicable law or regulation. (i) Receipt of Services. Customer will defend, indemnify and hold TPx harmless (including TPx’s officers, directors, employees, agents, and contractors) from any claims, liabilities, losses, damages and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to Customer’s receipt or use of the Services. This indemnity will not be available if the damage or loss is due to TPx’s willful or reckless acts or omissions. 4. Termination Rights and Remedies (a) Termination by Customer Before Installation. If Customer elects to terminate the Agreement or any orders for Services before Services are installed and available for Customer’s use, it must do so in writing, and will pay to TPx as a pre-installation charge an amount equal to: (1) the non -recurring charges applicable to the Services, even if initially waived, unless those charges have already been paid, (2) such amount that, if the Services require a third party that TPx contracts with to provide some or all of the underlying services, a charge from the third party, which as a result of Customer’s cancellation, TPx becomes obligated to pay, and (3) if the Agreement is for a Term of one year, an amount equal to three times the one m onth recurring charges, or, if the Agreement is for a Term of more than one year, an amount equal to six times the one month recurring charges . Customer agrees that such a termination charge is not a penalty and is a reasonable amount because, among other reasons, it would be difficult or impossible to calculate the exact amount of damages suffered by TPx if Customer terminates the Agreement or any orders for Services. (b) Termination for Cause. Either party may terminate the Agreement upon thirty (30) days notice if the other party materially breaches the terms and conditions of the Agreement and the other party fails to cure the default within the 30-day period, including, but not limited to, Customer’s failure to pay TPx’s invoices for the Services when due. If Customer terminates the Agreement after TPx’s material breach, then Customer will be responsible for (i) charges for the period before the date of termination and (ii) all remaining installment payments for the equipment that Customer purchased from TPx via an installment payment purchase as provided in the related Equipment Addendum. (c) Early Termination Fee. If Customer terminates the Agreement or any Services provided under the Agreement before the end of the Initial Term or any Renewal Term (“Terminated Term”) for any reason other than TPx’s material breach, Customer will pay to TPx an early termination fee equal to one hundred percent (100%) of the Monthly Recurring Charge for the terminated Service(s) multiplied by the number of months remaining in the Terms and Conditions to the Agreement 6 v100120 Terminated Term (the “ETF”). In addition, Customer will pay TPx as part of the ETF: (1) the non-recurring charges for the terminated Services, even if those charges had been initially waived; (2) any promotional credits provided to Customer; and (3) if some or all of the terminated Services were provided by a third party, an amount equal to any charge from the third party that TPx becomes obligated to pay as a result of the termination, including any charges TPx may incur from third party providers of any underlying services as a result of the early termination of the Agreement or any Service. For end user-oriented services (e.g., work stations/endpoints, end user subscriptions/licenses), Customer may downsize the quantity of such services by no more than ten percent (10%) below the greater of (i) the quantity of end-user-oriented services for which Customer contracted at the commencement of this Agreement, or (ii) the quantity of end-user-oriented services provided to Customer in any one of the then-preceding three (3) months without incurring an ETF. The ETF is due and payable immediately on the effective date of termination, and is in addition to any monthly recurring charges, usage charges and other charges due as of effectiv e date of termination and any liability of Customer for breach of the Agreement. Customer agrees that each of the above termination charges is a reasonable amount to compensate TPx for lost monthly recurring charges and usage charges following termination because, among other reasons, it would be difficult or impossible to calculate the exact amount of such damages suffered by TPx if Customer terminates the Agreement or any orders for Services . (d) Effective Date of Termination by Customer. If Customer terminates the Agreement or any Services provided to it for any reason other than TPx’s material breach, Customer will provide TPx with written notice to retention@tpx.com ninety (90) days in advance, and the effective date of the termination will be the end of that ninety (90) day notice period for purposes of determining the remaining time over which the termination charge will be calculated. If Customer does not give TPx that notice, then the effective date of termination will be the date TPx terminates the Agreement. For partial months, remaining monthly recurring charges will be determined on a prorated basis based on the number of days in such month during which Services were to be provided. (e) Move Charge. If Customer requests that TPx move the Services from Customer’s current service location to a different service location, Customer may incur a non-recurring charge (“Move Charge”). The Move Charge may include (i) a termination charge which, as a result of Customer’s termination, TPx becomes obligated to pay to a third party provider of the underlying facilities, and (ii) installation charge at the new service location. Also, a new Term may apply to any Services moved to a new service location. (f) Delinquent Account. In addition to any other recoveries TPx is entitled to receive, TPx will be entitled to recover from Customer for payment delinquencies all of the costs TPx incurs (including court costs and reasonable attorneys’ fees) to collect any delinquent charges owed by Customer along with all other damages TPx incurs as a result of Customer’s breach or other termination of the Agreement, including termination charges, past due recurring and usage charges, any damage to TPx’s equipment, any promotional credits provided to Customer and any amounts TPx has to pay to third parties because of violations by Customer of TPx’s AUP. (g) Notwithstanding the foregoing, Customer may terminate the applicable Agreement without any further obligation with respect to Services (but subject to Customer’s obligation to pay amounts owing for equipment purchased from TPx under an installment payment option pursuant to the terms of an Equipment Addendum, without offset or recoupment) if the Services TPx provides thereunder are not provided substantially in accordance with the requirements of such Agreement during the first ninety (90) days the Services are available for Customer’s use. If Customer elects to terminate the Agreement pursuant to this Section 4(g), TPx will reimburse Customer for the reasonable costs Customer incurred to re-establish service with another service provider not to exceed the amount that Customer paid to TPx for installation of the Services. This Section 4(g) only applies if: (i) the cause of the Service deficiency was within TPx’s reasonable control; (ii) Customer ordered at least the amount of Services that TPx recommended to meet Customer’s traffic volumes; (iii) Customer gives TPx written notice of the deficiency within the first ninety (90) days after TPx notified Customer the Services are available for Customer’s use, and (iv) TPx fails to correct the Service deficiency within fifteen (15) days after receiving written notice from Customer of the deficiency. Terms and Conditions to the Agreement 7 v100120 5. Credit Allowance, Warranty Disclaimer, Limitation of Liability and Indemnity (a) Credit Allowances for Interruption of Service. If an interruption or failure of Service is caused solely by TPx and not by Customer or any third party agent, carrier, vendor, employee, or repres entative of Customer or other causes beyond TPx's reasonable control, Customer may be entitled to a credit allowance not to exceed an amount equivalent to the proportionate charge to Customer for the affected Service for the time period from the time of Customer's report to TPx of the Service interruption to the time Service is restored, not to exceed in any month, the total monthly recurring charge owed by Customer for the affected Service in that month. The specific service levels, related credits and steps Customer must take to apply for credits are available on TPx's website at www.tpx.com/sla. TPx will not be liable for any act or omission of any other entity furnishing Customer with facilities or equipment used with the Services, nor will TPx be liable for any damages or losses due in whole or in part to Customer's fault or negligence or due in whole or in part to the failure of equipment or facilities that Customer provides. For the avoidance of doubt, any credit allowances or adjustments permitted under the Agreement shall only relate to payments for Services and shall not be applied as an offset, credit, adjustment or recoupment against any payments owing by Customer for equipment purchased from TPx pursuant to an Equipment Addendum. (b) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE "WARRANTY" SECTION OF A SERVICE ADDENDUM, TPx MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE OR DELIVERABLES. TPx SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. (c) EXCLUSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CUSTOMER NOR TPX WILL BE ENTITLED TO RECEIVE PUNITIVE, INCIDENTAL, EXEMPLARY, INDIRECT, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL) IN AN ACTION OR CLAIM OF ANY KIND OR NATURE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. (d) LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TPX’S TOTAL LIABILITY FOR ALL CLAIMS IN ANY MANNER ARISING OUT OF THE AGREEMENT WILL IN NO EVENT EXCEED THE LESSER OF (1) CUSTOMER’S PROVEN DIRECT DAMAGES, (2) THE AMOUNTS CUSTOMER PAID TO TPX FOR THE SERVICES GIVING RISE TO LIABILITY UNDER THE APPLICABLE AGREEMENT DURING THE SIX (6) MONTH PERIOD IN WHICH ANY SERVICE-RELATED PROBLEMS WERE EXPERIENCED, OR (3) THE CREDITS AVAILABLE TO CUSTOMER UNDER TPX’S TARIFFED LIMITATION OF LIABILITY. FOR CLARITY, THE FOREGOING LIMITATIONS APPLY TO ALL DISPUTES, CAUSES OF ACTION AND CLAIMS OF ANY KIND OR NATURE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. (e) Indemnification. (i) TPx Infringement Indemnity and Remedy. (A) TPx Infringement Indemnity. If a third party that is not an Affiliate of Customer asserts a claim against Customer asserting that TPx’s proprietary materials used or provided with the Services infringes a U.S. patent existing as of the effective date of the Agreement pursuant to which the Service is provided or a trade secret or copyright owned by that third party (a “TPx Infringement Claim”), then TPx will, at its own expense defend or settle the TPx Infringement Claim; and pay the damages finally awarded against Customer. However, TPx shall have no obligation for any such claim or other obligation for infringement to the extent resulting or alleged to result from: (1) modifications made other than by TPx, (2) use of the Services or any work product of TPx in combination with any equipment, software or materials not provided by TPx, (3) compliance with the instructions, designs or specifications provided by or on behalf of Customer, or (4) Customer's continuing any allegedly infringing activity after being notified thereof or after being informed and provided with modifications that woul d have avoided the alleged infringement. Terms and Conditions to the Agreement 8 v100120 (B) Infringement Remedy. If an injunction or order is obtained against TPx performing the Services for Customer by reason of the allegations of infringement of TPx’s proprietary materials, or if in TPx’s opinion such proprietary materials used or provided with the Services may violate a third party’s proprietary rights, then TPx wil l, at its expense and option: (1) procure for Customer the right to continue to receive the Serv ices; (2) modify the allegedly infringing item to make it non-infringing without substantially reducing functionally or procure a non- infringing replacement; or (3) if neither (1) nor (2) are commercially practical, terminate the Agreement and release Customer from its obligation to make future payments for the Services. (C) Exclusive Remedy. This Section 5(e)(i) contains Customer’s exclusive remedies and TPx sole liability for claims of infringement. (ii) Customer Indemnity. If a third party that is not an Affiliate of TPx asserts a claim against TPx that materials provided by or on behalf of Customer to TPx in connection with the Services infringes a U.S. patent existing as of the effective date of the Agreement pursuant to which the Service is provided or a trade secret or copyright owned by that third party (a “Customer Infringement Claim”), then the Customer will, at its own expense defend or settle the Customer Infringement Claim and indemnify TPx for any damages finally awarded against TPx . However, Customer shall have no obligation for any such claim or other obligation for infringement to the extent resulting or alleged to result from: (1) modifications made by TPx, (2) compliance with the instructions, designs or specifications provided by or on behalf of TPx, or (3) TPx’s continuing any allegedly infringing activity after being notified thereof or after being informed and provided with modifications that would have avoided the alleged inf ringement. (iii) Indemnification Procedures . Upon the commencement of any claim, action, suit or proceeding for which a party wishes to seek indemnification under this Section 5(e) (each, a “Third Party Claim”), the party seeking indemnification (the “Indemnified Party”) will provide prompt notice to the other party (the “Indemnifying Party”) so that the Indemnifying Party has reasonably sufficient time to file, answer and defend such Third Party Claim, provided however, that no delay on the part of the Indemnified Party in providing such notice will relieve the Indemnifying Party from its indemnification obligations except to the extent the Indemnifying Party is prejudiced by such delay. After receiving such notice, the Indemnifying Party will immediately take control of the defense, settlement and investigation of the Third Party Claim, and employ and engage attorneys reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party will, at the expense of the Indemnifying Party, reasonably cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of the Third Party Claim and any appeal arising therefrom. The Indemnifying Party may settle a Third Party Claim without the prior co nsent of the Indemnified Party only if the Third Party Claim involves only the payment of money by the Indemnifying Party without any admission of guilt or fault and a full and complete release from continuing and further obligation or liability on the par t of the Indemnified Parties is executed by Parties involved in the settlement and delivered to the Indemnified Party. If the Indemnifying Party does not assume full control over the defense of a Third Party Claim subject to such defense as provided in this Section 5(e), the Indemnified Party will have the right to defend the Third Party Claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party. 6. Confidentiality (a) Mutual Confidentiality. This Section sets out the terms for identification of information which is considered confidential and proprietary by a party (the “Discloser”), and restrictions against use and disclosure of such Confidential Information after disclosure to the other party (the “Recipient”). (b) Definition of Confidential Information. “Confidential Information” as used in the Agreement means all proprietary or confidential information that is disclosed to the Recipient by the Discloser, and includes: (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials; (ii) any products or services made available by a party; and (iii) the terms of this Agreement. Confidential Information does not include information that Recipient can show: (A) was rightfully in Recipient’s possession without any obligation of confidentia lity before receipt from the Discloser; (B) is or becomes a matter of public knowledge through no fault of Recipient; (C) is Terms and Conditions to the Agreement 9 v100120 rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (D) is or was independently developed by or for Recipient. (c) Obligations of Confidentiality. (i) As necessary to accomplish the purposes and objectives of this Agreement, Recipient may disclose Discloser’s Confidential Information to any Recipient employee, officer, director, subcontractor, agent or representative who has a legitimate need to know the information for the purposes of this Agreement and who is bound to Recipient to protect the confidentiality of the information in a manner at least as stringent as that required o f Recipient under this Agreement. Recipient may also disclose Discloser’s Confidential Information to Recipient’s attorneys if they are made aware of Recipient’s obligations of confidentiality under this Agreement. (ii) Recipient will not use or reproduce Discloser’s Confidential Information except as reasonably required to accomplish the purposes and objectives of this Agreement or as specifically permitted by this Agreement or approved in writing by Discloser. Recipient will protect Discloser’s Confidential Information from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid unauthorized use or disclosure of its own Confidential Information of a similar nature, but in no event less than reasonable care. (iii) Recipient will promptly notify Discloser if Recipient becomes aware of any material unauthorized use, disclosure, loss of, or inability to account for any Confidential Information of Discloser. If such use, disclosure, loss or inability to account resulted from Recipient’s breach of this Agreement then, without limiting Discloser’s remedies for such breach, Recipient will cooperate with Discloser and, at Discloser’s request, undertake commercially reasonable efforts to assist Discloser in investigating and preventing a reoccurrence thereof. (iv) Recipient shall be responsible for any breach of the confidentiality provisions of this Agreement by any party to whom it discloses or makes available Discloser’s Confidential Information as if such party were bound by the terms hereof and as if such breach were committed by Recipient. (d) No Implied Rights. As between Discloser and Recipient, Discloser’s Confidential Information will remain the property of Discloser. Nothing contained in the Agreement will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or by implication, any rights or licenses to the Confidential Information of the other Party. Any such obligation or grant w ill only be as provided pursuant to other provisions of the Agreement. (e) Compelled Disclosure. If Recipient becomes legally compelled to disclose any Confidential Information of Discloser in a manner not otherwise permitted by this Agreement, Recipient will provide Discloser with prompt written notice of the request (unless legally precluded from doing so) so that Discloser may seek a protective order or other appropriate remedy. Recipient will reasonably cooperate with such efforts by Discloser. If a prot ective order or similar order is not obtained by the date by which Recipient must comply with the request, Recipient may furnish that portion of the Confidential Information it is legally required to furnish provided that it (i) discloses only such Confidential Information as is legally required, and (ii) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed. (f) Return or Destruction. (i) As requested by Discloser during the Term, Recipient will retur n, destroy, or provide Discloser a copy of any designated Confidential Information of Discloser, provided that TPx will not be liable for any failure or delay in its performance of Services to the extent resulting from its obligation to return, erase, or d estroy Confidential Information of Customer in its possession prior to the completion of the Services. Upon expiration or termination of this Agreement, Recipient will return or destroy all materials in any medium that contain Confidential Information of Discloser. At Discloser’s request, Recipient will certify in writing that it has returned or destroyed all copies of Discloser’s Confidential Information in the possession or control of Recipient, any of Recipient’s Affiliates or subcontractors, or any other party to whom any of them provided or permitted access to Confidential Information of Discloser. Terms and Conditions to the Agreement 10 v100120 (ii) Recipient shall have no obligation to return or destroy any Confidential Information of Discloser that is subject to a claim, dispute, lawsuit, or subpoena or in any other circumstances in which Recipient reasonably believes that destruction would be unethical or unlawful. (iii) Any Confidential Information of Discloser retained by Recipient under this Section 6(f) shall remain subject to the confidentiality obligations under this Section 6. (g) Proprietary Legends. Recipient may not remove, obscure, or alter any proprietary legend relating to the Discloser’s rights on or from any form of Confidential Information of the Discloser, without the prior written consent of the Discloser, except as expressly authorized in an Agreement. (h) Survival. This Section 6 shall survive any termination or expiration of this Agreement. 7. Mutual Non-Solicitation. During the term of this Agreement, and for a period of six (6) months thereaft er, neither party will, directly or indirectly, solicit, negotiate, engage, employ, or offer employment to, the personnel or contractor of the other party involved with providing Services hereunder. 8. Resolution of Disputes: Binding Arbitration (Jury Trial Waiver), No Class or Representative Actions or Arbitrations (a) Binding Arbitration of Any and All Disputes. By entering into the Agreement, Customer and TPx waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration. "Dispute" as used in this Section 8 means any cause of action, claim, case, and/or controversy of any kind arising out of or in any way related to the Agreement (including any amendments , addendums or attachments to the Agreement or documents incorporated by reference into the Agreement), and/or the subject matter of the Agreement. (b) No Class or Representative Actions or Arbitrations. Customer and TPx expressly agree that any Dispute is personal to such parties, and any such Dispute will only be resolved by an individual arbitration and Customer will not bring or be a member in a class arbitration, a class action, or any other representative arbitration or judicial proceeding unless such agreement is prohibited by law. (c) The Federal Arbitration Act Applies. The Agreement affects interstate commerce and the enforceability of this Section 8 will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act (“FAA”) to the maximum extent permitted by applicable law. (d) Confidentiality. Except as may be required by law or otherwise agreed by the parties, the arbitrator, AAA (defined below), and the parties will maintain the confidentiality of any proceedings, including the existence of the proceedings and any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary. (e) Arbitration Procedures. If Customer and TPx cannot resolve between themselves any Dispute, Customer and TPx will promptly submit the Dispute to binding arbitration at the office of the American Arbitration Association (“AAA”) located in Los Angeles County, California. Either party may initiate arbitration by providing written demand for arbitration (with a copy to the other party), a copy of the Agreement and the administrative fee required by the commercial arbitration rules of the AAA (“AAA Rules”) to the AAA. Any party paying the administrative fee may recover the fee if awarded by the arbitrator. The arbitration will be held in accordance w ith the AAA Rules as modified by this Agreement. The AAA Rules, and other information about the AAA and arbitration, are readily available at www.adr.org, by calling 1-800-778-7879, or by mail at 120 Broadway, Floor 21, New York, NY 10271. By entering into the Agreement, Customer either (1) acknowledges that it has read and understands the AAA Rules or (2) waives reading the AAA Rules and waives any claim that the current AAA Rules are unfair in any way . Customer and TPx agree that the AAA Rules will be subject to the terms of the Agreement, changes in procedures that the AAA may make from time to time in its AAA Rules or successor rules to its AAA Rules , and the following modifications: Terms and Conditions to the Agreement 11 v100120 (i) As limited by the FAA, the terms of the Agreement, and the applicable AAA Rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substa ntive decisions concerning the Dispute; provided, however, that this power will not include: (a) the power to determine the question of arbitrability, which power Customer and TPx agree will be vested solely in a court of competent jurisdiction; or (b) the power to conduct a class or representative action or arbitration, which is pr ohibited by the terms of the Agreement as stated above (Section 8(b)). (ii) To the maximum extent permitted by applicable law, each party will bear the cost of preparing and presenting its case in an arbitration unless the arbitration award provides otherwise. Notwithstanding the foregoing, the prevailing party shall be entitled to recover reasonable attorney’s fees and court costs. (iii) One arbitrator will be appointed in accordance with the AAA rules within 30 calendar days of the submission of the demand for arbitration. The arbitrator will designate the time and place for hearings as soon as practicable after the arbitrator is appointed. (iv) The arbitrator’s authority to grant relief will be subject to the provisions of the Agreement, TPx’s applicable tariffs, if any, and any other applicable law. The arbitration award will state the reasons upon which it is based and will be in writing. Any award rendered by the arbitrator will be final, binding and non-appealable. Judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in this Agreement (Section 5(d)), and will not be entitled to award, nor will either party be entitled to receive, punitive, incidental, exemplary, consequential, reliance or special damages, including damages for lost profits; provided, however, that if the enforceability of any of these restrictions is limited by the applicable substantive law, that restriction will only be enforced to the extent permitted by such law. (v) Notwithstanding the foregoing, each party retains the right to apply to any court of competent jurisdiction for interim or provisional relief in aid of arbitration, including injunctive relief in aid of arbitration, and any such request will not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. However, once the arbitrator is appointed, he or she will have exclusive jurisdiction to hear applications for such relief. Any interim measures or provisional relief ordered by the arbitrator may be immediately and specifically enforced by a court of competent jurisdiction. Nothing herein will preclude a party from seeking emergency measures of protection under the provisions of the AAA Rules. 9. Enhanced 911 (“E911”) for Customers with Voice over Internet Protocol (“VOIP”) Based Services Notice (a) If the Services offered to Customer hereunder utilize VoIP technology to provide 911 and E911, this notice provides information about 911 and E911 capabilities and limitations on such voice services. The FCC requires that all telecommunications service providers utilizing VoIP notify their subscr ibers of the differences between the 911 and E911 access capability provided using VoIP technology and the 911 and E911 access capability using traditional telephone service. Further details about the FCC's requirements can be found at www.fcc.gov/cgb/consumerfacts/voip911.pdf. (b) Differences in VOIP 911 Capabilities. 911/E911 access capabilities that use VoIP technology differ from 911/E911 access capabilities using traditional telephone servic e. The following list outlines some of the key differences, along with steps that Customer can take to mitigate those differences. (i) Service Location Information. Customer must provide TPx with the correct service address of the location where Services will be used. If Customer does not provide correct service address information, or if Customer move Customer’s VoIP access device (including an integrated access device, IP p hone, or analog terminal adapter) to another location without updating service location information, calls to 911 will route to emergency personnel who may not be able to assist Customer, or may cause delays in receiving emergency services. (ii) Power Outage. A power outage will render Customer’s VoIP access devices unable to make or receive any calls, including calls to 911. Providing backup electrical power to VoIP access devices will mitigate this limitation. Terms and Conditions to the Agreement 12 v100120 (iii) Broadband Service Disruption. Disruptions to Customer’s broadband service will prevent calls to 911 from completing. A failover connection to the public Internet over a broadband connection will reduce the likelihood of a service disruption. (iv) Service Suspension. If Customer’s service is terminated or suspended for any reason, 911 will not be available. (c) Geolocation Registration. For calls to 911, TPx overrides any outbound calling line identification telephone number sent by the customer's phone system with a telephone number that is registered for the s pecific physical location of the service, also known as a geolocation. This enables 911 calls to route to the correct Public Safety Answering Point (PSAP), and that emergency personnel are sent to the correct location. Customer must provide accurate and timely information about Customer’s geolocation. There is a $125 charge per 911 call from telephone numbers with either incorrect or missing geolocation information. (d) Alternate Means of Contacting 911. Customer should maintain alternate means of contacting 911, such as analog phone lines. Customer is also responsible for notifying users of these alternate means of contacting 911. UCx clients on a mobile phone will route 911 calls through the mobile network prov ider by default. (e) Notification of Users. Customer is responsible for notifying any users, including staff, residents, guests, or other persons who may be present at any location where Customer utilizes TPx VoIP service about the limitations of 911 dialing on VoIP as compared with 911 dialing on traditional voice services. Customer will receive stickers concerning the limitations of 911 dialing on Customer’s TPx VoIP service. It is Customer’s responsibility to place the 911 sticker on or near each device that Customer uses with the Services. If Customer did not receive a 911 sticker with Customer’s device, or Customer requires additional 911 stickers, please call 877-344-7441. 10. Miscellaneous Provisions (a) FUSF Exemption. Telecommunication carriers that provide interstate telecommunications services must file FCC Form 499-A with the Federal Communications Commission ("FCC"). Customer must provide TPx a copy of the first page of the Universal Service Worksheet (FCC Form 499-A, with Filer 499 ID Number). If Customer is not required to file Form 499-A under applicable laws and regulations, Certificate B must be completed and returned to TPx. TPx assesses its customers the Federal Universal Service Fund ("FUSF") fee based on end user revenues. TPx exempts from this charge certain customers who contrib ute directly to the Universal Service Fund ("USF"). In such case, TPx has established a Certificate of Exemption from TPx's FUSF assessment. To be exempt from FUSF charges, Customer must certify the following: (i) Customer is an interstate provider of telecommunications services and has a Filer 499 ID Number; (ii) Customer will purchase Services under the applicable Agreement exclusively for purposes of reselling those services to end users; and, (iii) Customer (or its end users) is directly contributing to the FUSF on all services provided by TPx. To claim an exemption from TPx's assessment of FUSF charges, Customer must return certificate with the first page of the Universal Service Worksheet (FCC Form 499-A, with Filer 499 ID Number). (b) Independent Contractors. The parties hereto are acting as independent contractors and under no circumstances will any of the employees of one party be deemed the employees of the other as a result of the Agreement for any purpose. All of the Services performed by TPx will be performed as an independent contractor. TPx will perform such Services under the general direction of Customer, but TPx will have sole discretion to determine the manner, method and means of performing such Services subject to the provisions of this Agreement, including selecting the software and other technology and any subcontractors utilized by TPx in the performance of the Services. Neither party will have any authority to make any contract in the name of or otherwise to bind the other party. TPx will be responsible for and will pay all unemployment, social security and other payroll taxes, and all worker’s compensation claims, worker’s compensation insurance premiums and other insurance premiums, with Terms and Conditions to the Agreement 13 v100120 respect to TPx and TPx’s employees. This Agreement does not create a partnership or joint venture between the parties. (c) Insurance. TPx will provide and maintain during its rendition of the Services, but only for losses arising out of TPx independent contractor work for Customer: (a) Worker’s Compensation and related insurance as prescribed by the law of the state applicable to the employees performing such Services; (b) employer’s liability insurance with limits of at least one million dollars ($1,000,000) for each occurrence; (c) comprehensive/commercial general liability insurance including products liability with one million dollars ($1,000,000) per occurrence combined single limit and two million dollars ($2,000,000) general aggregate, including coverage for the use of subcontractors, products liability and completed operations, and not containing an exclusion for explosion, collapse and underground coverage; (d) comprehensive motor vehicle liability insurance, including coverage for owned, hired, leased, rented and non-owned vehicles of at least one million dollars ($1,000,000) for combined single limit for bodily injury, including death, and/or property damage; and (e) professional liability insurance covering the effects of errors and omissions in the performance of professional duties in the amount of one million dollars ($1,000,000) for each occurrence and in the aggregate associated with Services. (d) Export Controls. Customer will cooperate with TPx as reasonably necessary to permit TPx to comply with the laws and regulations of the United States and all other relevant countries, relating to the control of exports (“Export Laws”). Customer may not import, nor export or re -export directly or indirectly, including via remote access, any part of the Services into or to any country for which a validated license is required for such import, export or re - export under applicable Export Laws, without first obtaining such a validated license. (e) Assignment and Succession. Customer may not assign or transfer the Agreement without TPx’s prior written consent, which will not be unreasonably withheld. Any unauthorized assignment or transfer by Customer will be null and void. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successor and authorized assigns. The right to payments under any Equipment Addendum are assignable by TPx without consent as provided in su ch Equipment Addendum. (f) Governing Law. With the exception that the enforceability of Section 8 is governed both procedurally and substantively by the FAA (as stated above), the Agreement will be construed pursuant to the laws of the State of California without regard to the conflicts of law provisions thereof. (g) Force Majeure. TPx will not be liable for any failure of performance of the Services due to causes beyond TPx’s control, including fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorists, network attacks, riots, strikes, lockouts, work stoppages, Acts of God, or any law, regulation, directive, or order of the United States government, any other governmental agency, including state and local governments having jurisdiction over TPx or the Services provided hereunder, or the actions and failures to act of Customer or any third party. (h) Entire Agreement and Modifications. The Agreement and all other documents specifically referred to in the Agreement (including each applicable Equipment Addendum) constitute the entire and final agreement and understanding between Customer and TPx with respect to the subject matter of the Agreement and supersede all prior agreements relating to such subject matter, which are of no further force or effect. Any and all exhibits referred to in the Agreement are integral parts of the Agreement and are made a part of the Agreement. The Agreement, including each applicable Equipment Addendum, may only be modified or supplemented by an instrument in writing executed by both Customer’s and TPx’s duly authorized representatives or by a written notice of change pursuant to Section 1(d) hereof. Each Equipment Addendum relating to the Agreement is considered a separate and independent obligation of Customer to pay TPx for equipment purchased thereunder and the Agreement, as i t relates to the equipment and amounts payable in connection with any installment purchase option, is subject to the terms of such Equipment Addendum. (i) Severability. If any provision of the Agreement is held to be invalid or unenforceable by a court or administrative agency with jurisdiction over the Services, such provision will be deemed amended to the minimum extent necessary to render it enforceable. Terms and Conditions to the Agreement 14 v100120 (j) Order of Precedence. If there is any conflict within the Agreement between the TAA, MSA or Service Agreement (as applicable), these Terms and Conditions and an Agreement and any document incorporated by reference into an Agreement or an Addenda, the parties will attempt to read any such conflicting provisions consistently; however, in the event such a consistent reading cannot be accomplished, the order of precedence will be as follows (i) with regard to Tariffed Services, Section 1(b) of these Terms and Conditions; (ii) amendments to the Agreement entered into following the effective date of the Agreement; (iii) the TAA, MSA or Service Agreement (as applicable); (iv) these Terms and Conditions, except to the extent that an Agreement expressly references a provision of these Terms and Conditions and then, only with respect to such Agreement, the Agreement will control with regard to the referenced provision; (v) the Agreement; and (vi) other documents incorporated by reference into an Agreement. (k) Grant of License to Use Customer’s Name and Trademark. Customer agrees to grant and does hereby grant to TPx a non-exclusion, non-transferable, non-sublicensable, and royalty-free license to use and reproduce Customer’s name, logos, and trademarks on TPx’s sales and marketing materials, advertising and website at any time during the term of this Agreement. (l) Interpretation of Agreement. The word “including” will be construed to mean “including, without limitation”. The word “or” will mean “and/or” unless the context requires otherwise. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month and calendar year. The Agreement will be fairly interpreted in accordance with its terms and without strict construction in favor of or against either party based on the identity of the drafter of the Agreement or any term or provision thereof. (m) No Third Party Beneficiaries. Notwithstanding anything to the contrary, the Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party or deemed to provide third parties with any remedy, claim, right of action, or other right. (n) Survival. Sections 4 - 9 and Section 11 of the Agreement, inclusive of sub-sections, will survive any termination or expiration of the Agreement and will continue in full force and effect until they are satisfied in full or by their nature expire. (o) Headings. The headings used in the Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any of the terms. (p) Waiver. Under no circumstances will either party’s failure to enforce any provision of the Agreement in any particular instance be construed as a waiver of that provision. (q) Notices. All notices from Customer to TPx must be in writing and delivered by certified mail, return receipt requested or by Federal Express or other similar expedited delivery service to: U.S. TelePacific Corp., Attn. General Counsel, 515 S. Flower Street, 45th Floor, Los Angeles, CA 90071-2201. If Customer notifies TPx that it does not wish to renew Services, Customer’s written notice may be by a letter delivered in that manner or by an email to: retention@tpx.com. (r) Limitation on Actions. Any legal action (including but not limited to arbitration) arising in connection with this Agreement must be commenced within two (2) years after the cause of action arises. (s) UCx Services. Customer agrees that its use of UCx Services provided by Webex for Broadwork s is subject to the following: (a) the Cisco Universal Cloud Terms found at https://cisco.com/c/en/us/about/legal/cloud-and- software/universal-cloud-agreement.html , (b) the Cisco Privacy Data Sheets for Webex Meetings and Webex Teams found at https://trustportal.cisco.com/c/r/ctp/trust-portal.html#/customer_transparency, and (c) the Cisco End User License Agreement for the Cisco client software installed by Customer found at www.cisco.com/go/eula. Terms and Conditions to the Agreement 15 v100120 11. Service Guarantee Notwithstanding anything to the contrary contained in this Agreement, you may terminate this Agreement without any further obligation if the Services we provide are not substantially performing up to industry standards during the first ninety (90) days the Services are available for your use. If you elect to terminate the Agreement pursuant to this guarantee, we will reimburse you for all reasonable costs you incurred to re-establish service with another service provider not to exceed the amount that you paid to us for installation of the Services . This Service Guarantee only applies if: (a) the cause of the Service deficiency was within our reasonable control; (b) you ordered at least the amount of Services that we recommended to meet your traffic volumes; (c) you give us written notice of the deficiency within the first ninety (90) days after we notified you the Services are available for y our use, and (d) we fail to correct the Service deficiency within fifteen (15) days after receiving written notice from you of the deficiency . TPx Communications Service Level Agreement (SLA) Packet-Based Services v041720 1 1. General a. TPx Communications is committed to providing its customers with the highest quality c ommunications services. As a result, TPx will provide network service level remedies for the following categories, if applicable, for the listed services and features below purchased by the Customer: • Network Availability • Time to Repair • Service Response Time • Latency • High Availability Network and CPE • Packet Delivery • Packet Delay Variation • UCx Availability • SmartVoice Availability • Single Availability Network and CPE b. These guarantees apply to those services that use TPx’s Local Access Circuit and Core Network for the delivery of its voice and/or data services, as well as TPx services delivered over customer-provided local access transport if TPx provides Customer Premises Equipment (CPE) and other equipment for those specific TPx services. Local Access Circuit and services provided directly to the customer by an independent local access transport service provider, such as Internet or other services, are not covered by this SLA. TPx-provided cellular network access is covered under this SLA only if sufficient real-time signal strength and bandwidth are available from the cellular provider to support the TPx services that will access it. These services are described in Section 3 below. For integrated services over the same access circuit, the SLA will only apply to the service affected by the impairment. c. TPx service is interrupted or impaired when it falls below the performance specifications of this SLA due to failure of the TPx network, equipment, or facility component used to provide service under this SLA. An interruption or impairment period begins when the customer reports an inoperative service to TPx, or when TPx notifies the customer of such interruption or impairment and the service is made available' by the customer to TPx for testing and repair. The interruption ends when TPx notifies the customer that the service is operative. 2. Service Credit Claim Procedure and Limitations a. The customer must initiate the service credit claim within 45 business days after the end of the calendar month during which the event occurred. TPx will take all measures it deems appropriate to investigate reported failures. In no event shall the combined credits for the guarantees listed above, separately or combined with any other service credit claims against TPx, exceed in any month the total Monthly Recurring Charge (MRC) owed by the customer for the affected service(s) and associated local access in that calendar month. No more than one service credit allowance shall be provided to a customer for an outage or interruption in service from a single or the same occurrence. b. TPx will not provide any credit allowance for service interruptions or impairments that are: 1. Caused by the negligence of the customer or any third party not associated with TPx. 2. Due to the failure of communications and network services, equipment, local access or systems provided by the customer or any third party not associated with TPx. 3. During any period in which TPx does not have access to the premises where the service is located. 4. Released to TPx for maintenance purposes, to make rearrangements or reconfigurations, or to implement an order for a change in the service during the time period that was negotiated with the customer prior to the release of that service. 5. During planned or emergency/unplanned network maintenance activities. Planned maintenance activities are scheduled from 12 midnight to 6 AM local time, seven days per week. Unplanned, emergency network maintenance activities may occur at any time. Both of these activities could result in a customer service interruption or impairment. TPx will make every reasonable effort to minimize any customer service interruption or impairment during these activities. TPx will use reasonable efforts to notify Customer in advance of a planned or emergency maintenance that may cause an extended impairment or interruption to their services. 6. Caused when the customer elects not to release the service for testing and/or repair and continues to use it on an impaired basis. TPx Communications Service Level Agreement (SLA) Packet-Based Services v041720 2 7. Caused by or related to labor difficulties, governmental orders, civil commotions, acts of terrorism, any third party not associated with TPx, criminal actions taken against TPx, acts of God, and other circumstances beyond TPx’s reasonable control. 8. During periods of temporary discontinuance of service as specified in TPx’s applicable tariffs, Fraud Guidelines, Acceptable Use Policy (AUP), Customer’s TPx Account Agreement (TAA) and Customer Addendums. 3. SLA definitions and other relevant information a. Month is measured over any thirty (30) period. b. Cellular 4G network availability is dependent upon the cellular network provider’s network bandwidth and signal strength at any point in time after the 4G service connection is placed at the customer premises by TPx or the customer. TPx will make reasonable efforts for 4G equipment placement to ensure maximum bandwidth and signal strength access according to the customer’s placement requirements. After installation, TPx is not responsible under this SLA if the 4G network’s performance including, but not limited to, bandwidth availability and signal strength, is not capable at any point in time to support TPx services. c. Core Network is defined as being where the Customer’s Local Access Circuit is terminated to the TPx Core Network edge equipment’s ingress demarcation, across our Core Network to the far end TPx Core Network edge egress demarcation. The far end is then terminated to another customer Local Access Circuit, an Internet peering point, an interconnection to the Public Switched Telephone Network, other public voice termination network, or other circuit or service that is not part of TPx’s Core Network. TPx Core Network Availability Objective is TPx’s calendar month goal for availability of our core network. It is calculated as the percentage of time that the core network is capab le of accepting and delivering customer communications to the total time in the measurement period. d. Local Access Circuit is defined as being provided to the Customer directly by TPx and not by an independent and unaffiliated third party. e. Customer local access latency or other Customer network destination latency outside TPx’s Core Network, whether on TPx- or customer-provided or another network end point, is not covered by this SLA, although TPx-provided Local Access availability is covered under Time to Repair for Network Availability. Local Access (whether provided by TPx or the Customer) and other non -TPx destination network latency varies greatly by a number of factors for each location. For further information, TPx has a latency application note available for Customer review that further addresses these factors regarding their application latency requirements. f. Customer MRCs (Monthly Recurring Charges) covered by this SLA may include Access, Port, Service, Feature and CPE according to the impact of a service outage or interruption. g. Customer-provided Local Access Circuit is defined as any Local Access Circuit at the Customer’s premises that is not provided by TPx. Customer-Provided Local Access Circuits are not covered by TPx SLAs for Local Access Circuit availability. However, the services TPx provides over that circuit are covered in this SLA if: (1) the service is managed by a TPx-provided CPE, (2) the Customer-Provided Local Access Circuit is the bandwidth and quality recommended by TPx for all TPx-provided services and non-TPx bound traffic, (3) the Customer-Provided Local Access Circuit is operating within the service provider’s SLA, and (4) the customer provides such SLA to TPx prior to installation of TPx services, as well as at any subsequent updates in the future, and upon our request. h. High Availability CPE is defined as multiple instances of TPx-provided equipment configured in a High Availability design. Remedies are available when all instances of TPx-provided High Availability CPE are out of service. i. High Availability Local Access Network is defined as a combination of two or more independent TPx- provided Local Access Circuits, High-Speed Internet Access (HSIA) services, and/or Customer-provided local access services terminated into TPx-provided High Availability equipment at the Customer’s premises, as defined below. Remedies are available when the Customer is completely out of service. Customer-provided Local Access Circuits may be included in a High Availability Local Access Network and TPx Communications Service Level Agreement (SLA) Packet-Based Services v041720 3 this SLA, but their monthly recurring charges are not covered by this SLA’s remedies for any interruption or impairment of those services or a High Availability Local access outage. j. HSIA is defined as high-speed Internet access provided by a TPx-authorized vendor. TPx services that are delivered over a fully operational HSIA service and managed by TPx-provided CPE are treated according to their respective service SLAs. Broadband HSIA utilizes a shared connection. Dedicated HSIA does not utilize a shared connection. k. Latency is how much time it takes for a packet of data to get from one designated Core Network PE demarcation point to another Core Network PE demarcation point as defined above, and the packet’s return to its origination point across TPx’s Core Network. l. Measured throughput for services at any point in time is the actual available bandwidth for Customer data which can vary from the subscribed bandwidth due to service port speed, network and application protocol overhead (such as IP, Ethernet and application headers, transmissions, retransmissions and application protocol acknowledgments, error correction and time stamps), types of traffic contending for bandwidth and their prioritization plus other factors associated with communication services and the technologies used. Measured throughput rate is also determined by the slowest link between you and the endpoint you are communicating with especially over the Internet. m. Packet Availability is the difference between the number of packets transmitted at ingress to TPx’s Core Network and the total number of packets received at egress from TPx’s Core Network. n. Packet Delay Variation (Jitter) is the variation in the time between individual packets arriving. Jitter is measured one-way across TPx’s Core Network. SmartVoice and UCx services are covered under the Network Availability SLA Objective when the customer reports Packet Delay Variation or Jitter. o. Service Response Time is the time between when a service ticket is opened (by either TPx or the Customer), and the time when TPx begins performance of remedial services, either in person or remotely. p. Single CPE is defined as a single instance of TPx-provided CPE. q. Single Local Access Circuit is defined as a TPx-provided Local Access Circuit from the Customer’s premises terminated to the TPx Core Network edge equipment’s ingress demarcation and may include a TPx- provided network terminating unit. Customer-provided Local Access Circuit and CPE are not included in this definition. r. SmartVoice Voice Availability – SmartVoice objective is to be available and capable of transmitting inbound and/or outbound calls 100% of the time The TPx voice platform includes the TPx voice switching platforms and trunking connections to the public switched telephone network (PSTN) or other public voice termination networks. Voice platform downtime shall exist when a Customer location’s voice service is unable to transmit inbound and/or outbound voice calls on at le ast 25% of its SmartVoice subscribed call paths. Voice platform downtime is measured based on the total outage time incurred by the Customer. s. Time to Repair is the time between when the Customer first reports a service outage to TPx, or TPx notifies the customer that a trouble ticket has been opened on their behalf and the customer releases the service for repair, and when TPx notifies the customer that it is back in service. t. UCx Voice Availability – UCx’s objective is to be available and capable of transmitting inbound and/or outbound calls 100% of the time. The TPx voice platform includes the TPx voice switching platforms and trunking connections to the public switched telephone network (PSTN) or other public voice termination networks. Voice platform downtime shall exist when a particular Customer location’s voice service is unable to transmit inbound and/or outbound voice calls on at least 25% of its UCx subscribed seats or 25% of incoming/outgoing subscribed call path capacity. Voice platform downtime is measured based on the total outage time incurred by the Customer. u. TPx Service acronym definitions • UCx – Hosted Unified Communications • SmartVoice/SIP Trunking – Session Initiation Protocol Trunking Services using Voice over Internet Protocols for delivery of SIP, Primary Rate interface • MSR IP VPN – Managed Services Router using Internet Protocol Virtual Private Network • VPLS – Virtual Private Local Area Network • EPL – Ethernet Private Line • Internet/Direct Internet Access (DIA) • HSIA – High Speed Internet Access TPx Communications Service Level Agreement (SLA) Packet-Based Services v041720 4 and Channel Associated Signaling trunking or Business Lines • OneNet IP-VPN/MPLS – Internet Protocol Virtual Private Network using Multi-Protocol Label Switching 4. TPx SLA for Services and Networks a. TPx’s objective for all packet-based services is 100% availability. b. Time to Repair (TTR) commences once the Customer or TPx opens a repair ticket, and the Customer makes the service available to TPx for repair. c. Services covered: • UCx • SmartVoice/SIP Trunking • Net IP-VPN/MPLS • IP VPN • VPLS • EPL • TPx Internet/DIA • HSIA Service Response Time Time Interval Measurement <=1 hour for all Services to begin remedial activities Remedy 1/30th MRC for each hour exceeding 1 hour Core Network Availability TTR <=4 hours Remedy >4 hours: 1/30th MRC for each hour exceeding 4 hours High Availability Service with a combination of Two or More TPx-Provided Local Access Circuits, HSIAs or Customer-Provided Circuits and TPx High Availability CPE TTR <=4 hours Remedy >4 hours: 1/30th MRC for each hour exceeding 4 hours High Availability CPE TTR <=4 hours Remedy >4 hours: 1/30th MRC for each hour exceeding 4 hours Single Local Access Circuit provided by TPx (except HSIA) TTR <=4 hours Remedy >4 hours: 1/30th MRC for each hour exceeding 4 hours Single Dedicated HSIA TTR <=4 hours Remedy >4 hours: 1/30th MRC for each 4 hours exceeding 4 hours Single Broadband HSIA TTR <=24 hours Remedy >24 hours: 1/30th MRC for each 24 hours exceeding 24 hours TPx Communications Service Level Agreement (SLA) Packet-Based Services v041720 5 Single CPE TTR <=24 hours Remedy >24 hours: 1/30th MRC for each 4 hours exceeding 24 hours Core Network Availability Time Interval Measurement Calendar Month Remedy 1/30th MRC for each .001% below 100% Core Network Latency West Central or East Regional Networks Inter-Regional Networks (West to Central or East to Central) National Network (Between West and East Regional Networks) Latency (Round Trip, in milliseconds) 30 ms 50 ms 90 ms Time Interval Measurement Calendar Month Calendar Month Calendar Month Remedy 1/30th MRC for each 1 ms above 30 ms average 1/30th MRC for each 1 ms above 50 ms average 1/30th MRC for each 1 ms above 90 ms average Core Network Packet Delivery Availability 99.9% 99.9% 99.9% Time Interval Measurement Calendar Month Calendar Month Calendar Month Remedy 1/30th MRC for each full 1% below 99.9% 1/30th MRC for each full 1% below 99.9% 1/30th MRC for each full 1% below 99.9% Core Network Packet Delay Variation/Jitter (One way, in milliseconds) Net IP-VPN, MPLS, IP VPN, VPLS and EPL services only COS 1 <=5 ms COS 2 <=7 ms Net IP-VPN, MPLS, IP VPN, VPLS and EPL services only COS 1 <=5 ms COS 2 <=7 ms Net IP-VPN, MPLS, IP VPN, VPLS and EPL services only COS 1 <=7 ms COS 2 <=14 ms Time Interval Measurement Calendar Month Calendar Month Calendar Month Remedy 1/30th MRC for each 2 ms above SLA for one Class of Service 1/30th MRC for each 2 ms above SLA for one Class of Service 1/30th MRC for each 2 ms above SLA for one Class of Service UCx Voice Availability Time Interval Measurement Calendar Month Calendar Month Calendar Month Remedy 1/30th MRC for each full hour of unavailability 1/30th MRC for each full hour of unavailability 1/30th MRC for each full hour of unavailability SmartVoice Voice Availability Time Interval Measurement Calendar Month Calendar Month Calendar Month Remedy 1/30th MRC for each full hour of unavailability 1/30th MRC for each full hour of unavailability 1/30th MRC for each full hour of unavailability TPx Communications Service Level Agreement (SLA) for Time Division Multiplexed (TDM) Voice and Data Services V04012017 1 1. General TPx Communications is committed to providing its customers with the highest quality communications services. As a result, TPx will guarantee network service levels for the following categories, if applicable to TDM Voice and Data services and features purchased: Network Availability, Time to Repair, Latency, and Packet Delivery Guarantees. These guarantees apply to those services that utilize TPx’s local access and core network for the delivery of its voice and/or data services as described in Section 3 below. For integrated services over the same access circuit, the SLA will only apply to the service affected by the impairmen t. TPx service is interrupted when it becomes impaired to the extent that a Customer’s service falls below the performance specifications of this SLA because of the failure of the TPx network, equipment or facility component used to provide service under this agreement. An interruption period begins when an inoperative service is reported by the customer to TPx and the service is released for testing and repair and ends when the customer is notified that the service is operative. 2. Service Credit Claim Procedure and Limitations The customer must initiate the service credit claim within 45 business days after the end of the calendar month during or for which the event occurred. TPx will take all measures it deems appropriate to investigate reported failures. In no event shall the combined credits for the guarantees listed above, separately or combined with any other service credit claims against TPx, exceed in any month the total monthly recurring charge (MRC) owed by the customer for the affected service(s) and associated local access in that calendar month. No more than one service credit allowance shall be provided to a customer for an outage or interruption in service from a si ngle or the same occurrence. No credit allowance for service interruptions will be made under the following circumstances: • Interruptions or impairments caused by the negligence of the customer or any third party not associated with TPx. • Interruptions or impairments of a service due to the failure of communications and network services, equipment, local access or systems provided by the customer or any third party not associated with TPx. • Interruptions or impairments of a service during any period in which TPx does not have access to the premises where the service is located. • Interruptions or impairments of a service when the customer has released the service to TPx for maintenance purposes, to make rearrangements, reconfigurations or for the implementation of an order for a change in the service during the time period that was negotiated with the customer prior to the release of that service. • Interruptions or impairments of services that are during planned or emergency, unplanned network maintenance activities. Planned maintenance activities are from 12 midnight to 6 AM local time seven days per week. Unplanned, emergency network maintenance activities may occur at any time. Both of these activities may or may not include a customer servic e interruption or impairment. TPx will undertake every reasonable effort to minimize any customer service interruption or impairment during these activities and any service interruption or impairment is not covered under this SLA. • Interruptions of service when the customer elects not to release the service for testing and/or repair and continues to use it on an impaired basis. • Interruptions or impairments caused by or related to labor difficulties, governmental orders, civil commotions, acts of terrorism, any third party not associated with TPx, criminal actions taken against TPx, acts of God and other circumstances beyond TPx’s reasonable control. • Interruptions or impairments of service during periods of temporary discontinuance of service as specified in TPx’s applicable tariffs, Acceptable Use Policy (AUP) and Customer’s TPx Account Agreement (TAA) and Customer Addendums. TPx Communications Service Level Agreement (SLA) for Time Division Multiplexed (TDM) Voice and Data Services V04012017 2 Section 3 SLAs for Services TPx TDM Voice Services Subject to SLAs • Business Lines • PRI • SuperTrunk/CAS • OnePac • Flex • Mpower Office Network Availability SLA Objective 99.999% for both TPx Core Network and TPx Provided Customer Local Access Circuit Time Interval Measurement Calendar Month Time to Repair (TTR) 4 hours for both Core Network and Local Access Circuit Remedy <4 hours: $0 >=4 hours: 1/30th MRC for each hour exceeding 4 hours TPx Core Network SLA Objectives California and Nevada Regional Network California, Nevada and Texas Inter-Regional, Intra-Texas and Northeast Inter-Regional Networks National Network (Alaska, Hawaii and International require an SLA Addendum) Latency (Round Trip in milliseconds) 30 ms 50 ms 90 ms Time Interval Measurement Calendar Month Calendar Month Calendar Month Remedy 1/30th MRC for each 1 ms above 30 ms average 1/30th MRC for each 1 ms above 50 ms average 1/30th MRC for each 1 ms above 90 ms average Voice Availability 100% 100% 100% Time Interval Measurement One hour increments One hour increments One hour increments Remedy 1/30th MRC for each full hour of unavailability 1/30th MRC for each full hour of unavailability 1/30th MRC for each full hour of unavailability Definitions: 1. TPx Core Network is defined as being from our Provider Edges where TPx connects to the customer’s local access circuit and to the far end TPx Provider Edge connecting to an Internet peering point or an interconnection to the Public Switched Telephone Network. 2. Customer Local Access Circuit is defined as being from TPx-provided equipment and/or local access circuit at the Customer premises to the interconnection point to TPx’s Provider Edge network. 3. Calendar Month is a period from a specified day in one month to the day numerically corresponding to that day in the following month, less one. 4. Network Availability Objective is the calendar month availability of services to the customer. It is calculated as the percentage of time that the network is capable of accepting and delivering customer communications to the total time in the measurement period. Availability is defined as the customer having use of the service(s) even while another SLA parameter may be subject to repair and remedy. 5. Time to Repair is the period of time when the Customer first reports a service outage to TPx and releases the service for repair and when TPx notifies the customer that it is back in service. TPx Communications Service Level Agreement (SLA) for Time Division Multiplexed (TDM) Voice and Data Services V04012017 3 6. Latency is how much time it takes for a packet of data to get from one designated point to another and return to its origination point. 7. Packet Availability is the difference between the number of packets transmitted at ingress to TPx’s Core Network and the total number of packets received at egress from TPx’s Core Network. 8. Measured throughput for services at any point in time can vary plus or minus Ten Percent (10%) less than the Committed Information Rate (CIR) due to service port speed, type of customer traffic and its prioritization plus other factors associated with service delivery and the technology used. 9. Customer MRCs or recurring billing elements that are covered by this SLA may include Access, Port, Service, Feature and CPE according to the impact of a service outage or interruption. v082020 Equipment Addendum – Single Payment Purchase, Rental and/or Customer Provided Equipment This Equipment Addendum (this “Equipment Addendum”) amends and modifies the Telecommunications Account Agreement (TAA) or Master Service Agreement (MSA) (referred to herein, as so amended and modified, as the “Agreement”) between U.S. TelePacific Corp. d/b/a TPx Communications and/or its affiliated companies (“TPx”) and Customer. This Equipment Addendum governs both devices supplied by TPx as well as Customer-provided devices (all such devices collectively referred to herein as “Equipment”), and which said Equipment is used in conjunction with any of TPx’s Services. The Equipment may be: (1) purchased by Customer from TPx via a single payment, (2) rented by Customer from TPx, 3) provided by Customer. 1. PURCHASED EQUIPMENT The following terms apply to Equipment purchased from TPx: a. Condition of Sale. The terms and conditions of sale contained herein supersede all agreements made and purchase orders submitted to and accepted by TPx. b. Payment Terms i. For a single Payment Purchase under $3,000, the full Equipment purchase balance, along with shipping and handling costs and applicable taxes, are invoiced at the time of delivery and due by the “pay by” date on the first invoice. ii. For a single payment purchase over $3,000: (A) 50% of the total amount for Equipment purchased is due with contract acceptance. (B) The remaining Equipment purchase balance, along with shipping and handling costs and applicable taxes, are invoiced at the time of delivery and due by the “pay by” date on the first invoice. iii. Initial payments may be remitted by mail, via check, along with the signed Service Agreement, to: TPx 3300 N Cimarron Rd Las Vegas, NV 89129 Attn: Receivables iv. Initial payments may be remitted over the phone via check or credit card. A member of the Customer Financial Service team will contact you directly to take your prepayment when the signed Service Agreement is being validated. c. Credit Allowances. Credits granted by TPx for the interruption of services may not be applied to Equipment purchases or payments due or to become due under the Agreement (including this Equipment Addendum). d. Ownership of Equipment. If the Equipment is purchased, Customer is the beneficiary of any applicable warranty and is responsible for all taxes, insurance and risk of loss related to the Equipment. e. Equipment Purchase Cancellation. Customer may cancel an Equipment purchase within twenty-four (24) hours of signing (acknowledging) this Equipment Addendum. Notification of order cancellation must be emailed to billing@tpx.com. Cancellation of orders after twenty-four (24) hours will result in an v082020 order cancellation charge equal to 10% of the total amount for Equipment purchased. f. Shipping Charges and Taxes. Customer is responsible for all delivery or shipping charges, installation charges, and applicable taxes. g. Warranty on Purchased Equipment. i. Maintenance of Equipment. TPx will provide maintenance and support for Equipment purchased from TPx, including software updates and patches, for as long as Customer maintains its associated Service with TPx. ii. TPx Replacement Obligation. For Equipment purchased from TPx, TPx will replace any failed devices for as long as Customer maintains its associated Service, Customer’s account remains in good standing, TPx has reasonable access to replacement Equipment, and Customer returns the Equipment in accordance with the terms stated within the manufacturer warranty; provided that TPx and Customer agree that Customer’s obligations to make payments on the Services. The replacement item may be a new or reconditioned device of equal or comparable value. The TPx replacement obligation starts when Equipment is delivered to Customer, lasts for the duration Customer maintains an associated Service, and overlaps the manufacturer's warranty. It covers accidental damage, liquid damage, or any Equipment defect. Associated shipping and/or service order fees may apply. (A) Exclusions. Lost or stolen Equipment, or Equipment that appears to be damaged by intent, gross negligence or willful or reckless treatment shall not be covered under any TPx’s replacement obligation. Additionally, phone accessories and headsets shall not be covered under any TPx’s replacement obligation. MSx service(s) equipment replacement obligation terminates when the manufacturer no longer supports the equipment. (B) TPx’s Sole Obligation. TPx’s sole obligation with respect to Equipment is to repair the Equipment, deliver to Customer an equivalent replacement Equipment, or if neither of the two foregoing options is reasonably available, TPx may, in its sole discretion, refund to Customer the purchase price paid for the Equipment. Replacement Equipment may be new or reconditioned. The foregoing is Customer’s sole remedy, and TPx’s sole obligation, with regard to defective Equipment. iii. Return / Exchange Policy for Purchased Equipment. (A) Returns and Exchanges. Should it be necessary to return Equipment, Customer may return it for a refund or exchange, excluding any shipping charges and subject to a restocking fee of twenty-five ($25.00) dollars per unit, within thirty (30) days after delivery. Defective Equipment may be repaired or exchanged for the same or equivalent model only, at TPx's discretion. All returned Equipment must be unregistered, in complete original manufacturer's packaging, same condition as sold, with all accessories, literature, instructions, documentation and blank warranty cards. (B) Exclusions. No returns will be allowed on: phone accessories and headsets, network cabling, original manufacturer computers, computer products, or software once opened. 2. RENTED EQUIPMENT The following terms apply to Equipment rented from TPx: a. Rental Payments. Customer is responsible for all rental payments for Equipment rented from TPx. Customer agrees to pay the charges for this rental upon receiving billing for same. v082020 b. Rental Period. The rental period will begin on the date the Equipment is delivered to Customer and continue until the date the Equipment is returned to TPx or Customer converts the Equipment to a purchase. c. Use of Equipment. Customer agrees that the Equipment will be used solely by Customer, only at the address(es) designated, and solely for the purpose for which the Equipment was manufactured and intended unless TPx consents to other use. SUB-LEASING OR SUB-LETTING IS PROHIBITED without written consent of TPx. d. Loss of Equipment. If the Equipment is lost or stolen while rented under this Agreement, Customer shall be responsible for new replacement cost together with the ordinary rental fees due. e. Return of Equipment. Customer agrees to return, on termination of the Agreement or on request from TPx, the rented Equipment to TPx in the same condition as it was received, ordinary wear and tear excepted. Ordinary wear and tear includes: fading of text on buttons or keys due to use; nicks and scratches that do not affect use of the Equipment; adhesive left by the removal of tape or stickers; and any damage to the handset cord or cabling. In the event Customer fails to return the Equipment to TPx, Customer will be responsible for the new replacement cost of the Equipment. f. Ownership of Equipment. It is understood and agreed that all rented Equipment remains, at all times, the property of TPx. g. Support and Replacement for Rented Equipment. i. Maintenance of Equipment. TPx will provide reasonable maintenance and support for rented Equipment, including software updates and patches and failure due to manufacturer defect, faulty software, or ordinary wear and tear. ii. Replacement Obligation for Rented Equipment. For Equipment rented from TPx, TPx will replace any failed Equipment for the duration of the rental period, provided Customer’s account remains in good standing, TPx has reasonable access to replacement Equipment, and Customer returns the Equipment in accordance with the terms stated within the manufacturer warranty. The replacement Equipment may be new or reconditioned Equipment of equal or comparable value. The TPx replacement obligation starts when Equipment is delivered to Customer, lasts for the duration of the rental period, and overlaps the manufacturer's warranty. It covers accidental damage, liquid damage, or any equipment defect. Associated shipping fees may apply. iii. Replacement Exclusions. Lost or stolen Equipment or Equipment that shows repeated damage, shall not be covered under any TPx’s replacement obligation. Customer agrees to pay for any and all damages, from any such cause, resulting to the Equipment while rented under this Agreement, and/or the replacement cost of the lost, stolen, or damaged Equipment, together with the ordinary rental fees due until payment in full. iv. Early Termination. If, prior to the end of the Initial Term, Customer decreases the quantities of any rental Equipment by returning the Equipment to TPx for any reason, a restocking fee of twenty-five ($25.00) dollars per unit will be applied. 3. HARDWARE CLAIMS POLICY FOR ALL EQUIPMENT PURCHASED OR RENTED FROM TPX For all Equipment purchased or rented from TPx, Customer must inspect the Equipment carefully as to content and conditions upon receipt. All claims for damaged or missing items must be reported to TPx within two (2) business days of receipt of Equipment. In the event a package arrives damaged, it is the responsibility of Customer to contact TPx to inspect the package to assure full refund or replacement. All packaging must be retained until the problem is resolved. 4. CUSTOMER PROVIDED EQUIPMENT v082020 If Customer has requested that TPx enable access for Customer-provided Equipment to operate with TPx’s Service, and that Equipment is not prohibited by TPx, TPx may, at its sole discretion, enable access of that Equipment to a TPx service, subject to the following terms and conditions: a. Risks and Liabilities. Customer acknowledges and accepts all risks and liability associated with configuring Customer-provided Equipment to use TPx’s associated service or services. b. No Configuration or Troubleshooting of Customer Provided Equipment. Customer acknowledges that TPx will not provide any configuration or troubleshooting support on issues related to or caused by Customer-provided Equipment, other than to confirm that the associated user is properly configured within TPx’s platform. c. No Detrimental Equipment. TPx reserves the right to change authentication settings, block or remove Customer-provided devices, de-activate user accounts, or take other reasonable action in order to maintain the security and integrity of its systems and network, and to remove or block any Equipment deemed detrimental to TPx or its customers, at TPx’s sole discretion. 5. OTHER EQUIPMENT All Rented Equipment remains the property of TPx and will be promptly returned to TPx in good working condition, excluding ordinary wear and tear, upon termination or expiration of the Term. If Customer does not return said property within thirty (30) days following termination of the Service(s), Customer agrees to pay to TPx the manufacturer’s current list price for such hardware and software within ten (10) days of notice from TPx of such failure. Monies paid for Service(s) are not payments for Equipment unless explicitly stated on Customer’s invoice. 6. LIMITATION OF LIABILITY WITHOUT LIMITING ANY LIMITATION OF LIABILITY IN SUBSECTION (d) OF SECTION 5 OF THE TERMS AND CONDITIONS ATTACHMENT TO THE AGREEMENT, TPX LIABILITY IS LIMITED TO THE MONETARY VALUE OF THE EQUIPMENT PURCHASED OR ONE MONTH’S RENTAL FEE OF THE EQUIPMENT RENTED. MSx Service Addendum v100120 1. SERVICE LEVEL AGREEMENT 1.1. This Service Level Agreement (“SLA”) governs the use of MSx Services (also referred to herein as “Service(s)”) under the terms of the Master Service Agreement (the “Agreement”), between Customer and TPx Communications (“TPx”) and is subject to all the terms and conditions of the Agreement. TPx may update, amend, modify or supplement this SLA from time to time. The terms and conditions of this SLA are applicable to MSx Services only, and “Service” or “MSx Services” as used in this SLA refers to the products as outlined in Section 8 below. 1.2. Manufacturer Support Contracts for Customer-Provided Equipment When the Customer is providing its own equipment, Customer is responsible for maintaining an active and valid manufacturer support contract for all equipment under MSx support. Should the equipment be out of manufacturer support contract coverage, MSx support may not be able to assist in troubleshooting the equipment with Customer or underlying hardware vendor. Unsupported equipment will not be eligible for return merchandise authorization (“RMA”). SLAs do not apply when equipment does not have an active and valid manufacturer support contract. 1.2.1. Hardware RMA is Best effort and is subject to vendor RMA policies and shipping availability. TPx strives for next morning replacement. 1.3. Any service using end of life equipment as defined by the manufacturer is not subject to any SLAs. 1.4. Technical support and incident response services that fall outside the normal service will be billed at TPx’s standard time-and-material (“T&M”) rates. 2. SERVICE INTERRUPTION, IMPAIRMENT, CREDIT CLAIM PROCEDURE AND LIMITATIONS 2.1. TPx service is defined as having been interrupted or impaired when it falls below the performance specifications of this SLA due to failure of the TPx Core network, equipment, facility component(s), or personnel process and procedures used to provide service under this SLA. An interruption or impairment period begins when the Customer reports an inoperative service to TPx, or when TPx notifies the customer of such interruption or impairment and the service is made available by the customer to TPx for testing and repair. The interruption ends when the service is operative. 2.2. The customer must initiate the service credit claim within thirty (30) business days after the end of the calendar month in which the event occurred. TPx will take all measures it deems appropriate to investigate reported failures. In no event shall the combined credits for the guarantees listed above, separately or combined with any other service credit claims against TPx, exceed in any month the total Monthly Recurring Charge (“MRC”) owed by the customer for the affected service(s). No more than one service credit allowance shall be provided to a customer for an outage or interruption in service from a single or the same occurrence. 2.3. TPx will not provide any credit allowance for service interruptions or impairments that are: 2.3.1. Caused by the negligence of the Customer or any Third Party not associated with TPx. 2.3.2. Due to the failure of communications and network services, equipment, local access or systems provided by the Customer or any Third Party not under TPx Managed Services above. 2.3.3. During any period in which TPx requires physical access to the device under service and such access is not available. 2.3.4. Released to TPx for maintenance purposes, to make rearrangements or reconfigurations, or to implement an order for a change in the service during the time period that was negotiated with the customer prior to the release of that service. 2.3.5. During planned or emergency/unplanned maintenance activities. Planned maintenance activities are scheduled from 10:00 PM to 6:00 AM local time, seven days per week. Known service affecting work is done Fridays from 12:00 AM until 6:00 AM local to the market or at times approved by the Customer. Unplanned/emergency maintenance activities may occur at any time and may result in a customer service interruption or impairment. TPx will make every reasonable effort to minimize any customer service interruption or impairment during these activities. TPx will use reasonable efforts to notify Customer in MSx Service Addendum v100120 advance of a planned or emergency maintenance that may cause an extended impairment or interruption to their services. 2.3.6. Caused when Customer elects not to release the service for testing and/or repair after notification by TPx and continues to use it on an impaired basis. 2.3.7. If the local environment in which the Equipment is located is causing performance issues to the Equipment supported by TPx. 2.3.8. Requests for modification to the TPx-defined standard configuration of the Services will be considered on a case-by-case basis. Approval of such modifications will be at TPx’s sole discretion. TPx does not guarantee any particular result from non-standard configurations nor can it be held liable in any way for Service performance changes or failures which result from non-standard configurations. If any modifications to configurations are made by Customer or any agent of Customer that may cause the need for TPx to remediate and/or restore prior configurations, then that time may be billable at TPx’s standard T&M rates. 2.3.9. Caused by or related to labor difficulties, governmental orders, civil commotions, acts of terrorism, any third party not associated with TPx, criminal actions taken against TPx, acts of God, and other circumstances beyond TPx’s reasonable control. 2.3.10. During periods of temporary discontinuance of service as specified in TPx’s applicable tariffs, Fraud Guidelines, Acceptable Use Policy (“AUP”), Customer’s TPx Account Agreement (“TAA”) and Customer Addendums. 3. SLA DEFINITIONS AND OTHER RELEVANT INFORMATION 3.1. Month is measured over any thirty (30) day period. 3.2. Hours of Operation MSx Support Services are available 24/7/365 3.3. Mean Time to Response (MTTR) is the time between when a service ticket is opened (by either TPx or the Customer) and the time when TPx begins performance of remedial services. 3.4. Scope Number of users affected and how they are affected. 4. MEAN TIME TO RESPONSE 4.1. Codification The priority level of an event. Alerts and tickets are broken down into 5 levels or Priority Codes. This allows TPx personnel to quickly discern from an alert title or description the criticality, scope, expected response time and expected escalation time of an event. The Customer shall be notified via email, phone call or DASH ticketing system on the status of the ticket. 4.1.1. P1 Emergency Defined as an Emergency affecting the majority of users and their ability to perform primary duties. This priority can only be initiated via a phone call and carries with it an immediate response from the time the call is received by a technical resource. Diagnostics and troubleshooting procedures will begin immediately upon acknowledgement of the issue. Web Tickets, Emails, and Voicemails are not accepted in this priority until the content of the request is received and acknowledged. 4.1.2. P2 Critical Defined as an issue affecting multiple users and their ability to perform primary duties. This priority carries with it a 30-minute response to begin diagnostics and troubleshooting procedures. 4.1.3. P3 Urgent Defined as an issue affecting a single user and his/her ability to perform primary duties. This priority carries with it a 1-hour response to begin diagnostics and troubleshooting procedures. 4.1.4. P4 Normal Defined as an issue or question related to the operation of a single application or service. This priority carries with it a 2-hour initial response time to begin diagnostics and troubleshooting procedures. 4.1.5. P5 Request Defined as a request approved for implementation by the next available resource, or a proactive warning level alert which advises that a system’s status may lead to a future issue. This priority carries with it an up to 6-hour initial response and will be scheduled with the next available resource. MSx Service Addendum v100120 CODE SCOPE MTTR P1 Emergency Outage Immediate P2 Critical Multiple User affected 30 minutes P3 Urgent One User Affected 1 hour P4 Normal (default) Single application Single user 2 hours P5 Request Request or Warning 6 hours 5. EMERGENCY SUPPORT SERVICES 5.1 In the event of a natural disaster, TPx can provide Emergency Support services for thirty (30) days, upon request. 5.2 Services Disaster Relief package includes: MSx WAN Core 100 Service, Managed Services Router, and Primary 4G LTE Internet Access of 150GB a month, at no charge for thirty (30) days from the date Service is made available for Customer’s use. 5.3 When TPx learns of an approaching natural disaster, TPx shall monitor the situation and use commercially reasonable efforts to coordinate contingency plans with all potentially affected customers. 5.4 This is a Best effort support service. 6. INTERNATIONAL SUPPORT Customer is responsible for following any and all in country regulatory laws regarding the use of a U.S. based managed services provider. Should the country enact regulations or laws that prohibit the use of an MSx Service, Customer is responsible for returning the Service(s) equipment in good condition and disconnecting the service to that service address. Early Termination Fees will be credited upon request in this scenario. 6.1. Hardware will only be shipped to a U.S. based address. The customer is responsible for shipment of hardware, including any required documentation and/or certification, from the U.S. to the foreign country, including replacement hardware. Customer is responsible for all return shipment costs. Hardware replacement SLAs do not apply to international locations. 6.2. Customer is responsible for ensuring the local Internet circuit is ordered and installed prior to scheduling the test and turn up of its MSx Service. Customer is responsible for providing all necessary power adapters to connect the Managed Services Equipment at their international location. 7. PCI COMPLIANCE 7.1. TPx will maintain compliance with the Payment Card Industry (“PCI”) Data Security Standard (“DSS”) and audited annually by a Qualified Security Assessor (“QSA”). TPx is responsible for the security of cardholder data the service provider possesses or otherwise stores, processes, or transmits on behalf of the customer, or to the extent that TPx could impact the security of the customer’s cardholder data environment. PCI compliance is maintained for the following MSx services: 7.1.1. MSx WAN 7.1.2. MSx Firewalls 8. MSX SERVICES – Service descriptions may be found at http://www.tpx.com/support. 8.1. MSx Backups 8.1.1. Backup Cloud Retention and Use Data associated with backup Equipment enrolled in any plan that provides for data to be backed-up to a third party hosting provider retained by TPx (a “Cloud Offering”) will be retained, as specified in the applicable retention length selected with the purchased service plan, for as long as the Equipment is under an active subscription for which payments are current. If a subscription terminates, TPx reserves the right to delete, after sixty (60) days, the backed-up data in the Cloud Offering associated with Customer’s Equipment. It is Customer’s responsibility, during this period, at Customer’s expense, to request a copy of the data if Customer would like to retain a copy of the backed-up data in the Cloud Offering associated with Customer’s Equipment. TPx reserves the right to limit backup usage with the Cloud Offering if TPx determines there is activity or usage that: adversely impacts TPx, its vendors or other customers; results in excessive bandwidth or storage usage; or harms, disrupts, or otherwise diminishes the TPx brand, services, network, or any computer system. MSx Service Addendum v100120 8.1.2. Termination Customer may reduce the quantity of protected devices without incurring early termination fees. In the event of termination of any other MSx Backups subscription services prior to the end of the Service Term, see Section 4 of the Terms and Conditions to the Master Services Agreement. 8.2. MSx Endpoints 8.2.1. End User Support Scope Customer understands the “Core”, “Optimum”, and “Secure” service levels include administrative support for the MSx “Endpoints” platform. Endpoint support is limited to maintaining the automated patching and reliable performance of a computer’s operating system and applications and does not constitute an “IT Help Desk” service for end user “How-To” application training. Endpoint trouble tickets (“Tickets”) are limited to one (1) Ticket for every two (2) supported workstations per month after the first 2 months of service, with Services associated with additional tickets being provided by TPx at TPx’s standard T&M rates. TPx reserves the right to review sustained high-ticket incidence levels and limit or terminate the applicable Service, with applicable ETFs applying to such termination. 8.2.2. MSx Endpoints service includes support for devices that are running Microsoft Operating Systems and Software (“Software”) that are currently in either mainstream or extended support with Microsoft. Should Microsoft Software become End-of-Life during the term of your MSx Endpoints agreement with TPx, TPx, at its sole discretion, may continue to provide support on a limited basis until the supported device(s) are upgraded to a supported Microsoft Software. Customer may be asked to sign a liability waiver for continued TPx support on affected systems. 8.2.3. If, during onboarding or at any time during the contract term, a covered device is End-of-Life by the manufacturer, or otherwise does not meet the manufacturer’s guidelines for supportability, TPx may be able to provide limited support. Such limited support will be determined at TPx sole discretion on an individual case basis. 8.2.3.1. TPx will make all reasonable efforts to source parts and provide remote or onsite labor during this limited support period. 8.2.3.2. Troubleshooting and remote repair services for Optimum and Secure service levels will be covered under the standard Monthly Recurring Charge. 8.2.3.3. Parts will be billable at quoted rates per incident. 8.2.3.4. Onsite labor will be billable per standard TPx rates. 8.2.3.5. The customer can choose not to cover the unsupportable server and TPx will remove it from the service contract without ETFs during the onboarding process. Standard ETFs apply during the contract term. 8.2.4. Virus Remediation MSx Endpoints excludes virus remediation. Any virus remediation work may be quoted as a special project on a T&M basis. 8.2.5. MSx Endpoints service may include Managed Detection and Response service (MDR). If Customer elects a service level that includes MDR, Customer agrees to be bound be the terms and Conditions of the GoSecure EULA. 8.3. MSx Firewalls 8.3.1. Customer understands that if it chooses not to deploy SSL Deep Packet Inspection as part of the MSx Firewall Managed Security Service, all traffic traversing the firewall may not be fully inspected. Therefore, some protections, including but not limited to, anti-virus protection, may not be serviceable. 8.3.2. Testing Authorization - By executing this Addendum, Customer acknowledges that to provide Services, TPx may periodically scan Customer’s network with various assessments tools. Customer grants TPx authorization to perform this testing as needed in order to provide the Services. 8.3.3. Customer waives the licensing portion of the MSx Firewall service when providing their own hardware and assumes responsibility for maintaining an active and valid manufacturer support contract for these devices under MSx support. MSx Service Addendum v100120 8.3.4. TPx is not responsible for Wi-Fi network designs. TPx may make recommendations based on best efforts during the sales process but the Customer is responsible for wireless access point model selection and placement. TPx recommends customers perform heatmapping and wi-fi site surveys to optimize performance when designing and choosing wireless access point models and placements. Factors including but not limited to radio interference, environmental interference, client density, limited bandwidth, wireless access point model and wireless access point placement may result in poor coverage or performance issues. Troubleshooting by TPx related to poor Wi-Fi performance is a best effort engagement. Customer is responsible to purchase additional or different model wireless access points necessary to resolve Wi-Fi performance issues. 8.3.5. If Customer requires a virtualized firewall running in a managed cloud environment which may be with, but not be limited to, Azure or AWS, TPx can support this type of software only deployment as part of its managed firewall service. However, TPx will not support any of the design, procurement, deployment, configuration, management or troubleshooting of the virtualized environment. Customer is responsible for obtaining and maintaining a current license for the firewall. The proper resources including but not limited to CPU processing power and memory must be allocated and maintained. TPx shall not be responsible for performance issues related to insufficient virtual machine sizing. A supported version of the firewall firmware must be used. Customer must provide TPx administrative management access to the virtualized firewall via the public internet before any provisioning can begin. Customer shall provide all necessary networking access to the firewall to allow for the proper functioning of the firewall. 8.4. MSx Networks 8.4.1. Testing Authorization - By executing this Addendum, Customer acknowledges that to provide Services, TPx may periodically scan Customer’s network with various assessments tools. Customer grants TPx authorization to perform this testing as needed in order to provide the Services. 8.4.2. Customer may waive the licensing portion of the MSx Network service when providing their own hardware but in doing so Customer assumes responsibility for maintaining an active and valid manufacturer support contract for these devices under MSx support. 8.4.3. TPx is not responsible for Wi-Fi network designs. TPx may make recommendations based on best efforts during the sales process but the Customer is responsible for wireless access point model selection and placement. TPx recommends customers perform heatmapping and wi-fi site surveys to optimize performance when designing and choosing wireless access point models and placements. Factors including but not limited to radio interference, environmental interference, client density, limited bandwidth, wireless access point model and wireless access point placement may result in poor coverage or performance issues. Troubleshooting by TPx related to poor Wi-Fi performance is a best effort engagement. Customer is responsible to purchase additional or different model wireless access points necessary to resolve Wi-Fi performance issues. 8.5. MSx Office 365 8.5.1. Microsoft Customer Agreement 8.5.1.1. TPx, participating in the Microsoft Cloud Solution Provider (“CSP”) Program, may license Customer certain Microsoft Corporation (“Microsoft”) products. If Customer elects to acquire CSP Program products from TPx, Customer is agreeing to the following Microsoft Customer Agreement: http://www.tpx.com/Microsoft-Services-Agreement.pdf. 8.5.1.2. Customer agrees that any changes to Microsoft products are at the sole discretion of Microsoft, and TPx is not liable for these changes or any documentation to the contrary. Should Microsoft cease to provide a product serviced to the Customer by TPx, TPx will recommend an alternative product for the Customer’s consideration. Should the Customer not elect to change to another Microsoft product provided by TPx, TPx reserves the right to cancel Customer’s Services pursuant to the terms of the Master Service Agreement. Any associated change in price or migration expenses will be the sole responsibility of the Customer. MSx Service Addendum v100120 8.5.2. Customer understands that it is licensing Microsoft Office 365 product subscriptions from TPx as its CSP, and as such are to engage TPx directly for all Office 365 platform performance issues. Customer understands that Microsoft is ultimately responsible for overall Office 365 product definitions, platform performance, stability, and availability, and agrees that TPx will use commercially reasonable efforts to provide its MSx Support but that TPx does not guarantee any Office 365 platform performance or functionality. 8.5.3. Customer understands MSx Office 365 service is designed for Administrative Support for the Office 365 platform. End User Help Desk “How-To” questions on application use are not included with MSx Office 365. Support for locally installed Office applications and Customer devices (including but not limited desktop and laptop computers, and mobile devices) are not part of this service but may be available as part of TPx’s MSx Endpoints service. 8.5.4. TPx reserves the right to refuse Customer requests for non-supported administrative configurations of Office 365 deployments in favor of Microsoft recommended practice configurations. 8.6. MSx WAN 8.6.1. MSx WAN Public IP feature is not supported at international locations (i.e. inbound Internet failover is not supported at these locations). 8.6.2. International SD-WAN Gateways via third parties, including the manufacturer, are not supported. 8.7. Third-party Vendor Support is an optional feature, which is defined as TPx acting as the Customer’s representative with permission (Letter of Agency) in communicating Customer Provided Internet Access service outages to the Customer’s Internet Access Provider. Third-Party Vendor Support is supported within the Internet Access Provider’s published Technical Support hours using the local or toll-free phone number provided by the Customer during the TPx onboarding process. The Customer is responsible for providing the necessary information to TPx that will allow for TPx to report Internet Access service issues on the Customer’s behalf. Third party vendor support is not available for International locations. 8.8. 4G LTE Network Access Services is defined as a wireless 4G LTE Internet connection. 8.8.1. Cellular 4G network availability is dependent upon the cellular network provider’s network bandwidth and signal strength at any point in time after the 4G service connection is placed at the customer premises by TPx or the customer. TPx will make reasonable efforts for 4G equipment placement to ensure maximum bandwidth and signal strength access according to the customer’s placement requirements. After installation, TPx is not responsible under this SLA if the 4G network’s performance including, but not limited to, bandwidth availability and signal strength, is not capable at any point in time to support TPx services. Service degradation is possible and TPx shall not be liable for any resulting damages. 4G LTE antenna extensions are not included in the 4G LTE Network Access service. 8.8.2. In the event a plan limit has been met, TPx will throttle the 4G LTE connection speed to 5Mbps or below without notification to the Customer. The connectivity speed may not resume as normal, until the beginning of the next billing cycle. Should a Customer exceed the plan threshold three times within a rolling twelve-month period, TPx reserves the right to give the Customer thirty (30) days’ notice to either (1) add and/or upgrade to an additional TPx or Customer provided Internet connection or (2) terminate the service without early termination charges. TPx reserves the right to change the traffic usage cap without notice. 8.8.3. “Failover” service option may only be used when a Customer-specified “Primary” connection is down. In the event that the Customer Provided Internet Access requires TPx support personnel to contact the Internet Service Provider more than three times within a rolling three-month period, TPx retains the right to terminate the applicable 4G LTE Connection at the Customer site with thirty (30) days written notice to the Customer at no charge to the Customer. 8.8.4. SLA(s) do not apply to site-to-site communication with 4G LTE services, unless the service is supported via VeloCloud Multipath tunnels. 8.8.5. Third-Party Vendor support is required when 4G LTE is ordered with only customer provided circuit(s). MSx Service Addendum v100120 8.8.6. The modem is TPx property for Customer use during the Service term. Customer is responsible for the safeguard of the installed modem and must not remove from the originally deployed location. The Customer may not replace the modem with any other device serviced by another carrier and/or TPx. Switching the modem will cause Service malfunction and TPx shall not be liable for any damages resulting from the Customer either changing the modem or moving the modem to a different physical location. 8.8.7. If the 4G LTE wireless device gets lost, stolen, or damaged, it is mandatory that the Customer notify MSx Support, within 24 hours, so that the 4G LTE connectivity can be suspended to prevent an unauthorized party from using it. If the wireless device is used after the loss or theft but before it is reported, a suspension of liability to pay for 4G LTE related charges may be requested by the Customer while the Customer’s account activity is under review. If the Customer has not been given a courtesy suspension of recurring monthly charges during the past year, the Customer may request the suspension for thirty (30) days or until the wireless device is replaced or recovered, whichever comes first. There will be device replacement costs and installation fee chargeable to the Customer account to re-establish Service. 9. Disclaimer on TPx’s Liability to Customer 9.1. TPx does not warrant that all Customer failures or problems can or will be remedied with TPx services. Customer understands that TPx services do not constitute any guarantee or assurance that the security of a Customer’s systems, networks or assets cannot be breached or are not at risk. Client acknowledges the inherent risks associated with internet connectivity. TPx disclaims any and all liability to Customer for the security of Customer’s network. Customer grants TPx the authority to make changes to systems related to the contracted services to address security threats, and TPx shall not be liable for actions or inactions which may result in a) lost use of system(s) or network(s), (b) loss of business opportunity, or (c) business interruption or downtime. Contract No. ________ Page 1 of 3 Exhibit B: Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured. 1.MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES Additional Insureds: The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s Commercial General Liability and Cyber Liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage: Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self- insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Software Provider’s insurance and shall not contribute to it. Notice of Cancellation: Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Software Provider, its employees, agents, and subconsultants. General Liability: For bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Software Provider’s policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). Contract No. ________ c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Agreement. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. Automobile Liability ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. Cyber Liability: Insurance, with limits not less than: $2,000,000 each occurrence $2,000,000 aggregate - all other Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Software Provider in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. If the Software Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Software Provider . Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 2. ABSENCE OF INSURANCE COVERAGE. City may direct Software Provider to immediately cease all activities with respect to this Agreement if it determines that Software Provider fails to carry, in full force and effect, all insurance policies with coverages at or above the limits specified in this Agreement. At the City’s discretion, under conditions of lapse, Cit y may purchase appropriate insurance and charge all costs related to such policy to Software Provider. 3. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION. A Certificate of Insurance, on an Accord form, and completed coverage verification shall be provided to City by each of Software Provider's insurance companies as evidence of the stipulated coverages prior to the Commencement Date of this Agreement, and annually thereafter for the term of this Agreement. All of the insurance companies providing insurance for Software Provider shall be licensed to do insurance business in the State of California and shall have, and provide evidence of, a Best Rating Service rate of A:VII or above. Page 2 of 3 Contract No. ________ Page 3 of 3 4. SUBCONTRACTORS Software Provider shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. 5.HIGHER INSURANCE LIMITS If Software Provider maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Software Provider . 6.ADEQUACY OF COVERAGE City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY A 1,000,000 660-0R314971 Bernie Munoz 10,000,000 LOS-002533401-01 1,000,000 1,000,000 X X 36940 1,000,000 AggregateSIR: $500,000 of Marsh Risk & Insurance Services Los Angeles, CA 90071 N X07/01/2020 1 07/01/2021 03/05/2020 07/01/2021 810-0R315814 Cyber & Technology E&O A 2,000,000 1,000,000 Indian Harbor Insurance Company 1,000,000 X B 01/27/2021 2,000,000 07/01/2020 2,000,000 The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are included as additional insured where required by written contract with respect to General Liability. This insurance is primary and non-contributory over any existing insurance and limited to liability arising out of the operations of the named insured subject to policy terms and conditions. Waiver of subrogation is X TOTAL AGGREGATE 10300 Torre Ave #1 Cupertino, CA 95014-3202 The City of Cupertino, its City 0 applicable where required by written contract and subject to policy terms and conditions. A CN101989551--GAUWC-20-21 Each Claim 10,000 07/01/2021 1,000,000 CUP-0R343118 2,000,000 25674 1,000,000 1,000,000 03/05/2021 UB-0R331629 CA License #0437153 Marsh Risk & Insurance Services X 633 W. Fifth Street, Suite 1200 X dba TPx Communications U.S. TelePacific Holdings Corp. Los Angeles, CA 90071 515 South Flower Street, 47th Floor X X MTP9040687 00 07/01/2020 Council, officers, officials, employees, agents, servants and volunteers 07/01/2020 A 07/01/2021 Travelers Property Casualty Company Of America SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY A 1,000,000 660-0R314971 Bernie Munoz 10,000,000 LOS-002487367-01 1,000,000 6,000,000 X X 6,000,000 of Marsh Risk & Insurance Services Los Angeles, CA 90071 N X07/01/2020 7 07/01/2021 07/01/2021 810-0R315814 A 2,000,000 1,000,000 1,000,000 X and limited to liability arising out of the operations of the named insured subject to policy terms and conditions with respect to General Liability. Waiver of subrogation is applicable where required by written contract 07/01/2020 07/01/2020 Proof of Coverage only. X TOTAL AGGREGATE 515 South Flower Street, 47th Floor Los Angeles, CA 90071-2201 U.S. TelePacific Holdings Corp. 0 Certificate Holder is included as additional insured where required by written contract with respect to General Liability and Auto Liability. This insurance is primary and non-contributory over any existing insurance and subject to policy terms and conditions with respect to General Liability, Auto Liability, and Workers Compensation. A CN101989551--GAUW-20-21 10,000 07/01/2021 1,000,000 CUP-0R343118 2,000,000 25674 1,000,000 1,000,000 UB-0R331629 CA License #0437153 Marsh Risk & Insurance Services X 633 W. Fifth Street, Suite 1200 X dba TPx Communications U.S. TelePacific Holdings Corp. Los Angeles, CA 90071 515 South Flower Street, 47th Floor X X 07/01/2020 DBA TPx Communications 07/01/2020 A 07/01/2021 Travelers Property Casualty Company Of America ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: MPower Management Corp.;� NextWeb, Inc.;� OCiX, Inc.;� ICG ChoiceCom L.P.;� 22 MPower Holding Corporation;� Stockdale Equipment, Inc.;� Los Angeles The Los Angeles Telephone Company, Inc.;� U.S. TelePacific Corp.;� Arrival Communications, Inc.;� TelePacific Communications Corporation;� Named Insured Includes:� �� TPx International Holdings Corp.;� U.S. TelePacific Holdings Corp;� Certificate of Liability Insurance CN101989551 MPower Communications Corp.;� MPower Communications Of NY, Corp.;� Primary Network Holdings, Inc.;� TPx Communications Co.; � DSCI, LLC;� DSCI Corporation Of Virginia, Inc. �� Marsh Risk & Insurance Services� dba TPx Communications� U.S. TelePacific Holdings Corp.� Los Angeles, CA 90071 515 South Flower Street, 47th Floor� Big City Networks, Inc.;� 25 MPower Networks Services, Inc.;� TPX Reconfiguration Solution Agreement Final Audit Report 2021-02-08 Created:2021-02-02 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAACXPAGRAB8_Oq2HkouRf_y9fvRg9zMLQ0 "TPX Reconfiguration Solution Agreement" History Document created by City of Cupertino (webmaster@cupertino.org) 2021-02-02 - 9:37:14 PM GMT- IP address: 35.229.54.2 Document emailed to Marilyn Monreal (Marilynm@cupertino.org) for approval 2021-02-02 - 9:44:49 PM GMT Email viewed by Marilyn Monreal (Marilynm@cupertino.org) 2021-02-02 - 9:46:12 PM GMT- IP address: 73.93.41.158 Document approved by Marilyn Monreal (Marilynm@cupertino.org) Approval Date: 2021-02-02 - 11:06:14 PM GMT - Time Source: server- IP address: 73.93.41.158 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-02-02 - 11:06:18 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-02-02 - 11:18:47 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Tonica Francis (carolyn.thurston@tpx.com) for signature 2021-02-02 - 11:18:51 PM GMT Email viewed by Tonica Francis (carolyn.thurston@tpx.com) 2021-02-02 - 11:20:48 PM GMT- IP address: 104.47.55.254 Document e-signed by Tonica Francis (carolyn.thurston@tpx.com) Signature Date: 2021-02-02 - 11:23:17 PM GMT - Time Source: server- IP address: 71.202.160.108 Document emailed to Heather M. Minner (minner@smwlaw.com) for signature 2021-02-02 - 11:23:21 PM GMT Email viewed by Heather M. Minner (minner@smwlaw.com) 2021-02-03 - 7:42:07 PM GMT- IP address: 45.41.142.254 Document e-signed by Heather M. Minner (minner@smwlaw.com) Signature Date: 2021-02-03 - 7:42:35 PM GMT - Time Source: server- IP address: 52.39.49.65 Document emailed to Bill Mitchell (billm@cupertino.org) for signature 2021-02-03 - 7:42:38 PM GMT Email viewed by Bill Mitchell (billm@cupertino.org) 2021-02-08 - 4:35:06 PM GMT- IP address: 104.47.45.254 Document e-signed by Bill Mitchell (billm@cupertino.org) Signature Date: 2021-02-08 - 4:40:34 PM GMT - Time Source: server- IP address: 73.63.186.99 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-02-08 - 4:40:38 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-02-08 - 5:13:11 PM GMT- IP address: 104.47.73.254 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-02-08 - 5:13:21 PM GMT - Time Source: server- IP address: 69.110.137.176 Agreement completed. 2021-02-08 - 5:13:21 PM GMT