CDN Service Schedule

SCHEDULE FOR CONTENT DISTRIBUTION SERVICES

This CDN Service Schedule contains certain terms and conditions that apply to the Content Distribution Services provided by Highwinds.  The terms contained herein are in addition to, and not in lieu of, the terms in the MSA and Order to which this Schedule pertains.  In the event of a conflict between or among the terms of this Schedule and those of any Orders referencing this Schedule, the terms of the Order shall control with respect to the subject matter of the Order.

  1. Services Provided.  Subject to the limitations and restrictions set forth in this Agreement, Highwinds agrees to enable Customer or Customer’s end users to distribute Customer Content via Highwinds’ Network (“Content Distribution Services”) and, if ordered by Customer, to store Customer Content (“Storage Services”) (Content Distribution Services and Storage Services shall be referred to collectively herein as the “Services”).
  2. Monthly Charge; Per Service Usage Charge.  Customer shall pay the Monthly Charge (also referred to as the “Monthly Minimum Usage Charge” in this Schedule), the Per Service Usage Charges (also referred to as the “Monthly CDS Burst Charge” and, if ordered by Customer, the “CDS Monthly Storage Charge”), and the Spike Charge, as such terms are defined and calculated below.  The amount of GBs transferred or stored will be calculated using 1,000,000,000 bytes as the definition of a GB.
    1. 2.1. The “Monthly Minimum Usage Charge” shall be calculated by multiplying the Number of Units set forth in the Order for the Service by the applicable Unit Price.
    2. 2.2. The “Monthly CDS Burst Charge” shall be the Monthly GB Burst Charge and the Monthly Mbps Burst Charge, or the sum of both, as applicable, which are determined follows:
      1. For Content Distribution Services, if the Order sets forth Units measured on a per GB transferred basis, Customer will be charged based on the amount of GB transferred for each month for such Service.  The amount of GBs transferred through such Service shall be calculated by Highwinds each month (the “Monthly GB Usage”).  Customer traffic for purpose of invoicing will include all ingress traffic and egress traffic related to such Service.  If the Monthly GB Usage is greater than the Number of Units for the Service, then the difference between the Monthly GB Usage and the Number of Units specified in the Order for the Service shall be multiplied by the specified Burst Rate for the Service, and the resulting product shall be the “Monthly GB Burst Charge.
      2. For Content Distribution Services, if the Order sets forth Units measured on a per Mbps basis, Customer will be charged based on the Mbps usage for each month for such Service.  Highwinds shall calculate the total amount of megabits transferred for such Service at each port in a calendar month (the “Monthly CDS Port Usage”).  The sum of all Monthly CDS Port Usages for a month shall be that month’s “CDS Monthly Traffic Usage” for such Service.  If the CDS Monthly Traffic Usage is greater than the Number of Units specified in the Order for the Service, then the difference between the CDS Monthly Traffic Usage and the Number of Units specified in the Order for the Service shall be multiplied by the specified Burst Rate for the Service, and the resulting product shall be the “Monthly Mbps Burst Charge.”  The Customer’s usage of such Service, both for ingress and egress of traffic related to the Service, will be sampled every 5 minutes for the previous five minute period on each port.  At the end of each calendar month, the top five percent (5%) of traffic samples for each port shall be discarded.  The higher of the remaining 95th percentile value for ingress or egress traffic will then constitute the Mbps usage amount for that particular port for that calendar month.
    3. 2.3. For Storage Services, the amount of storage used by Customer for each calendar month shall be calculated by Highwinds and multiplied by the applicable Unit Price set forth in the Order (“CDS Monthly Storage Charge”).
    4. 2.4.   If Customer’s traffic pattern becomes erratic and/or causes spikes (upward or downward) in usage, then Highwinds will determine its incremental charges caused by this spike, if any, and invoice the Customer a one-time charge equal to such charges (“Spike Charge”). A spike will be defined as any traffic increase or decrease, planned or unplanned, as can reasonably be determined in excess of fifty percent (50%) of Customer’s normal pattern average for that time period (day/week/month).  If Customer becomes aware of a potential traffic spike, then Customer will notify Highwinds in advance of such occurrence.  In order to maintain the quality of the network services for all customers, if Highwinds detects the occurrence of a spike, then Highwinds reserves the right to suspend Service with no less than a four (4) hour notice to Customer if no response is received from Customer during those four (4) hours to affect arrangements to curtail the spike.
  3. Service Level Warranties.
    1. 3.1. Highwinds guarantees that Service Availability for the Network shall be 99.99%.  “Service Availability” shall mean the ability of Customer to transmit and receive Customer Content via the Network.  Subject to the terms of Sections 3.7 and 3.8, in the event that Service Availability falls below 99.9% for any given month, then: (i) for every outage lasting for more than 30 minutes, Highwinds will provide Customer with one Service Credit (as defined hereafter); and (ii) if the outage lasts more than 60 minutes, Highwinds will provide Customer with one Service Credit per each 60 minute period of such outage after the first 60 minutes of the outage.  A “Service Credit” means an amount equal to equal to the product of (i) 1/30th of the Monthly Minimum Usage Charge, or if no Monthly Minimum Usage Charge is specified in the Order for the Service, then 1/30th of the CDS Monthly Burst Charge for the month in which the SLA breach occurred; and (ii) the Service Proportion (defined hereafter).  The “Service Proportion” shall is calculated by dividing (x) the fees paid for the Service in the month just prior to the month in which the SLA breach occurred, by (y) the total fees owed by Customer for all services included in the Order during the month just prior to the month in which the SLA breach occurred.
    2. 3.2. Highwinds guarantees an average, as calculated each calendar month, of at least twelve hundred kilobits per second (1200 kbps) data transfer speed with respect to cached content through the Content Download Applications, assuming the end-user has the proper capacity to receive such throughput.  Subject to the terms of Sections 3.7 and 3.8, if the guarantee set forth in Section 3.2 is not met in any given calendar month during the Term of the Service, Highwinds shall provide Customer with one Service Credit.  For purposes of this Schedule, “Content Download Applications” shall mean those services provided by Highwinds to Customer hereunder that permit Customer Content or other Customer files to be transferred from a remote compute to a local computer via the Network.
    3. 3.3. Highwinds guarantees an average, as calculated each calendar month, Time to First Byte (defined below) of at least 150ms for HTTP traffic within a region.  For purposes of this Section 3.3, a region is either North America or Europe.  No other geographic areas are covered by the guarantee set forth in this Section 3.3.  For purposes of this Schedule, “Time to First Byte” means the time elapsing from the moment the last packet of a test agent request is sent and the moment of receipt of the first packet of the test agent from the Highwinds’ point of presence.  Subject to the terms of Sections 3.7 and 3.8, if the guarantee set forth in Section 3.3 is not met for any given calendar month during the Term of the Service, Highwinds shall provide Customer with one Service Credit.
    4. 3.4. Highwinds will maintain measurement tools for the determination of compliance with the above-mentioned guarantees (each an “SLA”), and while Customer may also maintain such, Highwinds’ measurements, except in the case of manifest error, shall be the singular basis for determining compliance or non-compliance with the guarantees set forth herein.
    5. 3.5. To report critical support issues, Customer should call Highwinds (24×7 NOC) at 866-872-0357 or 602-515-0931 immediately after the service performance issue arises. For all other support issues, Customer may email support@hwng.net to generate a ticket for Highwinds’ NOC team.
    6. 3.6. Notwithstanding anything to the contrary in this Schedule, an SLA shall not be deemed to be breached and no remedy shall be available to Customer hereunder as to a particular Order:
      1. if Customer has not paid any undisputed amounts due under the MSA (the parties agreeing not to unreasonably dispute any amounts due); or
      2. to the extent the breach of the SLA is caused by any of the following:
        1. A failure of Customer Equipment or equipment of a Customer’s vendor not covered under the Agreement;
        2. A failure of applications or software code owned or licensed by Customer or provided to Highwinds by Customer;
        3. Failure of Customer-controlled actions and environment at the Customer’s premises (e.g. power failure, temperature increases, firewall blocking, disconnecting Highwinds Supplied Equipment, etc.);
        4. Failure in local access circuits or cross connects connecting the Customer to the Highwinds Network, unless otherwise specified;
        5. Use of media players (Windows or Flash) coded for non-standard buffering time that inhibit fast connection times;
        6. A failure of encoder servers or live-signal acquisition services owned or leased by Customer or provided to Highwinds by Customer;
        7. A failure or delay by Highwinds testing agent to report data relating to the service performance metrics set forth in the applicable order, including any failure or delay caused by false-positive data point readings;
        8. A failure of any service or product not provided to Customer by Highwinds pursuant to this Schedule (including the failure of any other service or product provided to Customer by Highwinds pursuant to the MSA, which failure shall be governed any service level warranty set forth in the Schedule applicable to such service or product);
        9. Force Majeure events as defined under the Agreement;
        10. Any act or omission of Customer or any third party, including, without limitation, Customer’s agents, contractors or vendors, that causes Highwinds to be unable to meet any of the SLA, including, without limitation: (a) failing to provide Highwinds (or its agents) adequate access to facilities for testing; (b) failing to provide access to Customer premises as reasonably required by Highwinds (or its agents) to enable Highwinds to comply with its obligations regarding the Service; or (c) failing to take any remedial action in relation to a Service as recommended by Highwinds, or otherwise preventing Highwinds from doing so.
        11. Customer’s negligence or willful misconduct, which may include Customer’s failure to follow agreed-upon procedures;
        12. Any scheduled maintenance periods when Customer has been informed of such maintenance and any emergency maintenance;
        13. Customer’s account, during the period in question, violating the AUP; or
        14. Customer not opening a support ticket to report any specific service performance issue.
    7. 3.7. Claims for Service Credits must be submitted not later than thirty (30) calendar days after the last day of the month in which the applicable failure of the SLA occurred.  Each claim must include the following information: (1) Customer name; (2) Customer contact name and contact information; (3) date and beginning/end time of outage or failed SLA; (4) a report from a measurement tool stating the basis for the failed SLA; and (5) the specific Highwinds support ticket number opened in relation to the performance issue and brief description of the characteristics of the failed SLA.  Customer must submit the required information by written electronic notice to creditrequest@highwinds.com.  Approved credits will be applied to the Customer’s invoice within sixty (60) days of the Customer’s credit request submission.  Highwinds reserves the right to change, amend, or revise this policy at any time upon notice to Customer.
    8. 3.8. THE SLAS SET FORTH IN THIS SCHEDULE SHALL APPLY ONLY TO THE SERVICE DESCRIBED HEREIN AND DO NOT APPLY TO ANY OTHER SERVICE.  THIS SCHEDULE STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY HIGHWINDS TO PROVIDE THE SERVICE DESCRIBED HEREIN AND ANY BREACH BY HIGHWINDS OF ANY OF THE SLAS SET FORTH HEREIN.  NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY HEREIN OR ANYWHERE ELSE IN THE AGREEMENT, CUSTOMER SHALL NOT RECEIVE AND HIGHWINDS SHALL NOT BE REQUIRED TO PROVIDE MORE THAN THIRTY SERVICE CREDITS FOR THIS SERVICE IN ANY ONE MONTH.