Subsea Capacity Service Terms

This Subsea Capacity Service Terms (“Subsea Terms”) is entered between the Lightstorm entity offering such service (“Provider”) and the relevant customer (“Customer”) and applies to Customer Application Forms, purchase orders or other ordering documents for subsea cable Capacity Services which have been submitted by Customer and accepted by Provider in accordance with the general terms and conditions for delivery of Services.

Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the master services agreement or general terms governing the Services and unless the context otherwise requires, industry terms and commonly used acronyms shall be interpreted in accordance with their generally accepted meanings in the telecommunications industry.

In the event of any inconsistency between the Subsea Terms and the terms of the master services agreement, the Subsea Terms shall govern and prevail.

Definitions. 
"Capacity" or “Capacity Lease” means all subsea capacity set forth in an Order(s) to be provided by Provider to Customer.

"Governmental Authority" means any federal, national, state, regional, county, city, municipal, local, territorial, or tribal government, whether foreign or domestic, or any department, agency, bureau or other administrative or regulatory body obtaining authority from any of the foregoing, including without limitation, courts, public utilities and communications authorities.

“Network” means any subsea cable network or segment thereof forming part of Provider’s or its supplier’s international connectivity infrastructure, including any associated landing facilities, equipment and terrestrial extensions as may be specified in an applicable Order (individually as applicable and collectively referred to as the “Network”).

"Order(s)" means the Customer Application Form, ordering documents and purchase order(s) so entitled (including any attachments, amendments or addendums thereto) that is signed by Customer and Provider setting out matters relating to Provider’s delivery of Capacity to Customer and governed by this Subsea Terms.

"Services" or “Provider Services" means all services to be provided by Provider to Customer as set forth in an Order.

“Upstream Supplier” means any consortium member, system supplier, or maintenance authority from which Provider obtains the Capacity or associated services.

Scope of Capacity Lease. Provider agrees to provide to Customer a Capacity Lease as set forth in the Order(s). Such Capacity may be comprised of multiple specific circuits between Endpoints as defined in the Order(s) (hereinafter individually referred to as “Circuit”). Colocation services and other equipment not comprising the Capacity are not provided under this Subsea Terms. Customer shall have no legal ownership or rights in the Network or Circuit (except as provided herein) or in any proceeds from the disposition of any or all portions of the Network or Circuit. Customer further acknowledges that Provider sources the Capacity from third-party cable consortia or system suppliers, and accordingly the Services are provided on a back-to-back basis with Provider’s Upstream Supplier agreements. Provider’s obligations hereunder shall not exceed those assumed by such Upstream Supplier. To the extent the Services are sourced from third-party suppliers, Customer acknowledges that the terms of such supply arrangements are confidential and proprietary to Provider and its suppliers, and nothing herein shall be construed to grant Customer any right of access to or review of such arrangements.

Term.

Once an Order has been submitted by Customer and accepted for provisioning by Supplier, Change Requests may be made only with the express consent of Supplier.

The term of the Capacity shall be defined for each Circuit comprising the Capacity, and shall be as indicated on the Order(s), commencing on the delivery date of the Circuit as made available by Provider to Customer, and has been accepted by Customer and agreed between the Parties in writing (email will suffice) (“Service Start Date”) or as may be terminated earlier pursuant to any of the terms or conditions of the master services agreement, this Subsea Terms, Upstream Supplier agreement, or pursuant to law. Such terms for the Circuit(s) comprising the Capacity shall be referred to individually or collectively as “Order Term.”

Unless otherwise specified in the Order, the term of Service shall extend beyond the Order Term for an indefinite period on a month-by-month basis (each a successive extension) until such time as either party gives the other thirty (30) calendar days’ notice of its wish to terminate, with each successive extension a Renewal Term.

Upon the expiration or termination of the Order Term, all rights to use the Capacity shall revert to Provider without reimbursement of any of the Monthly Recurring Charge(s) (“MRC”), Non-Recurring Charge(s) (“NRC”) or other sums, costs, fees or payment previously made by Customer with respect thereto, and from and after such time, Customer shall have no further rights or obligations hereunder with respect thereto unless such rights or obligations are specifically provided herein to survive the Order Term.

Taxes and Fees

All charges for Capacity are net of applicable taxes. Except for taxes based on Provider's net income, Customer will be responsible for payment of all applicable VAT, GST, consumption tax, use, excise, access, bypass, franchise, regulatory or other like taxes, fees, charges or surcharges, whether now or hereafter enacted, however designated, imposed on or based on the provision, sale or use of the Capacity (hereafter "Taxes"). For the avoidance of doubt, Customer shall reimburse Provider for any regulatory fees charged to Provider by any Governmental Authority or agency, including but not limited to the U.S. Federal Communications Commission (“US FCC”), or any telecommunications authority in jurisdictions where the Network or Circuit operates, in connection with Capacity provided hereunder. In the event that any regulatory fees are imposed on Provider in connection with the Capacity provided hereunder (including but not limited to International Bearer Circuit Fees, Universal Service Fund Contributions and/or their equivalents), Provider shall provide Customer with an invoice for such regulatory fees along with supporting documentation and Customer shall pay such invoice within thirty (30) days from the date of the same. To the extent Customer is or believes it is exempt from payment of certain Taxes, it shall provide to Provider a copy of a valid tax exemption certificate. Provider will give effect to any valid exemption certificate in the next full billing cycle following receipt of the certificate from Customer, but only to the extent Provider is permitted to do so under applicable laws. Notwithstanding the foregoing, in the event that Customer’s exemption certificate is or becomes invalid during the Order Term, and Provider is assessed or responsible for additional Taxes, penalties or late charges, Customer shall be responsible for such charges.

If Customer is or was required by law to make any deduction or withholding from any payment due hereunder to Provider, then, notwithstanding anything to the contrary contained herein, the gross amount payable by Customer to Provider will be increased so that, after any such deduction or withholding for Taxes, the net amount received by Provider will not be less than Provider would have received had no such deduction or withholding been required. If any taxing or Governmental Authority asserts that Customer should have made a deduction or withholding for or on account of any Taxes with respect to all or a portion of any payments made hereunder, or that Provider should have collected certain Taxes from Customer which Provider did not collect, Customer hereby agrees to reimburse or indemnify Provider for such Taxes and hold Provider harmless on an after-tax basis from and against any Taxes, interest or penalties levied or asserted in connection therewith.

Early Termination Charges

Provider's Remedies. The rates and charges set forth in each Order are established in reliance on the Order Term commitment made therein by Customer. If Customer cancels an Order during an Order Term commitment or in the event Provider terminates an Order because of Customer’s material breach, then Customer agrees to pay to Provider which Customer acknowledges is a genuine pre-estimate of Provider’s loss, within thirty (30) days receipt of an invoice from Provider: (i) an amount equal to the total of any and all NRC as reflected on the terminated Order(s), (ii) an amount equal to one hundred percent (100%) of the MRC payable for the unexpired remainder of the term, plus (iii) any documented third party expenses not covered by (i) and (ii) above incurred by Provider in respect of the terminated Order (including any Local Loop charges), (“Early Termination Charges”). In any event, Customer shall be obligated to pay Provider for any Capacity delivered to Customer up to the date of termination.

Use of Services.

Network Integrity. Customer may not improperly restrict or interfere with the Network or Circuit or its operations. Upon notice by Provider, Customer shall promptly remove any hazard, interference or service obstruction owned by or under the control of Customer (individually, a “Threatening Condition”). Nothing stated herein shall be construed to interfere with Provider’s ability to comply with the rules, regulations or directives of any governmental or jurisdictional authority. In the event that Customer improperly restricts or interferes with the Network or Circuit, its operation or the use thereof, Provider may, after giving Customer notice and reasonable opportunity to cure, immediately modify, suspend, delay, condition, or cease its obligations under the Order(s) or master services agreement in whole or in part until such restriction or interference is cured. Notwithstanding the above, if Provider, in its sole discretion, determines that the Threatening Condition creates an emergency situation with respect to the operation or use of the Network or Circuit, it shall not be required to notify Customer or provide an opportunity to cure before taking any of the actions discussed above. If such Threatening Condition arises, Provider agrees to notify Customer of such actions it has taken with one (1) hour of taking such action. Such notification shall explain in detail the date and time of such action as well as a complete explanation as to why Provider has taken such action. Provider shall however not be liable for any degradation or faults arising from Customer’s use of non-compliant or unapproved equipment connected to the Network or Circuit.

Emergency Blockage of Services. If Provider, in its sole discretion, determines that an emergency action is necessary to protect the Network or Circuit, Provider may block any transmission path over the Network or Circuit where Customer’s transmissions do not meet standard industry requirements. The Parties further agree that none of their respective obligations to one another under this Subsea Terms will be affected by any such blockage and that no party will have any obligation to the other party for any claim resulting from such blockage.

Operations, Administration and Maintenance (“OA&M”).

Responsibilities. During the Order Term, Provider shall (if applicable) use commercially reasonable efforts to provide, directly or indirectly, operations, maintenance and administrative services for the Services (but not for Customer’s equipment or equipment or other services provided to Customer by third parties (“Excluded Items”)). Customer’s sole responsibility with regard to the OA&M of the Network or Circuit shall be to pay the MRC when such payments become due.

Procedures. Provider shall respond to any failure, interruption or impairment to the operation of the Services (but not including any failure, interruption, impairment or degradation of Excluded Items, with the exception of reasonable cooperative testing to isolate the source of any failure, interruption, impairment or degradation) (an “Interruption”) after receiving a report that such an Interruption has occurred and shall undertake emergency maintenance as provided herein. With respect to electronic components in locations, Provider shall use commercially reasonable efforts to repair such Interruption within four (4) hours after receiving such report. With respect to terrestrial segments, Provider shall use commercially reasonable efforts to dispatch a crew to the site, commence and repair such Interruption within eighteen (18) hours after receiving such report. With respect to undersea repairs, Provider shall use commercially reasonable efforts to dispatch a crew to the site of the repair, commence and complete such repairs within twenty-one (21) days after receiving such report.

Network Design, Enhancements, Upgrades and Maintenance. Provider shall have the right to reconfigure, redesign, regroom, rearrange or consolidate channels or circuits comprising the Network or Circuit and to perform all related functions when any of the following circumstances exist (a) maintenance on the Network or Circuit (b) failure of the Network or Circuit, or (c) congestion on the Network or Circuit requiring such activities at the completion of which, Customer’s Circuit(s) shall be returned to its original contract status. Provider also reserves the right from time to time to further upgrade the capacity of, make enhancements to, and to perform maintenance on the Network or Circuit. Provider shall minimize any interruption to or impairment of the Services arising from the implementation of any such enhancement, upgrade or maintenance. Provider shall provide reasonable notice beforehand to Customer of such activities. 
Customer’s Equipment. Customer’s equipment shall only be installed and maintained (a) by Provider, upon Customer’s request in accordance with terms and conditions to be agreed upon by the Parties or (b) by a contractor chosen by Customer and approved by Provider, such approval not to be unreasonably withheld, and accompanied by a Provider representative. Any request by Customer for Provider to perform installation and maintenance services for Customer’s equipment shall be provided at an additional charge, solely at Customer’s expense and shall be subject to a separate agreement.

Service Level Guarantee

Any service credits or remedies received by Provider from its Upstream Supplier in respect of the Network or Circuit shall be passed through to Customer on a back-to-back basis, and such credits shall constitute Customer’s sole and exclusive remedy for Service unavailability.

Force Majeure.  

Neither party shall be liable for any delay or failure in performance, except for Customer’s payment obligation, resulting from Force Majeure; provided that the affected party:

Promptly notifies the other Party of the Force Majeure event, its expected duration, and the obligations affected and

Uses all commercially reasonable efforts, including the implementation of industry-standard cable protection and restoration practices, to mitigate the effects of the Force Majeure event and to resume full performance as soon as reasonably practicable.

For the duration of the Force Majeure event, each party must continue to perform all obligations that they are able to perform.