Global Order Terms and Conditions (“GOTC”)

(as incorporated by reference to all order forms)

These GOTCs are subject to all non-conflicting terms and conditions of the MSA. To the extent that the GOTC conflict with terms and conditions of the MSA, the terms, and conditions of the GOTC shall govern. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the MSA.

For all products, an Initial Payment is due and payable on the Service Activation Date by Customer, which shall encompass the first three (3) months of Service (“Service Quarter”) and shall be comprised of the Monthly Recurring Charges (“MRC”) beginning on the first day of the first full month following the Service Activation Date and any Non-Recurring Charges (the (“Initial Payment”), plus the pro-rata MRC from the start of the Service Activation Date to the end of the month in which the Service Activation Date occurred.  The Customer will be invoiced the initial payment on a Service Quarter basis in advance which shall be due and payable in full before the first day of the Service Quarter.

All orders for service will have an Initial Service Term of one year, which will commence on the Service Activation Date and will terminate at the end of the month in which the Initial Service Term expires.  For example, if the Service Activation Date is May 15th, 2024, and the Initial Service Term is one (1) year then the Customer service order will terminate on May 15th, 2025.

If Customer does not take delivery of the service for reasons other than outlined in the MSA or “Effective Date; Terms; Termination” section, the Initial Payment shall not be refunded.

In addition to the MRC, the Customer agrees to pay, all applicable foreign, federal, state, and local taxes (other than taxes on Anova’s net income), including without limitation, all sales, use, value-added, excise, franchise, property, commercial, gross receipts, license, privilege and other taxes, levies, surcharges, or duties, including the Universal Service Fund fee (collectively, “Taxes”).  Customer further agrees to pay all regulatory recovery fees and administrative surcharges (collectively, “Recovery Fees”) that may be necessary for Anova to offset the costs associated with Anova’s compliance with regulatory requirements, including but not limited to: i) charges that Anova pays to providers of telecommunications services that are used to provide services to customers; ii) fees and assessments on our network facilities and services; iii) costs of various foreign, state, local and other regulatory programs; iv) costs that Anova incurs responding to regulatory and legal obligations and; v) tax engine licensing costs, third party tax advisory expenses, and other associated costs. Current Recovery Fees are billed at 5.18% of all MRC amounts on a Customer’s invoice, however, Anova reserves the right to increase this amount no more frequently than once per annum and with a minimum of 60 days’ notice to Customer.

To the extent any such Taxes are exemptible, the Customer shall provide Anova with appropriate certificates demonstrating that it maintains tax-exempt status from collection of all or part of any Taxes within thirty (30) days of signing any new order form or for exiting order forms, on an annual basis, no later than January 31st.  Customer shall keep its billing address and contact information current, and shall be responsible for paying all reasonable collection costs incurred by Anova (including without limitation, reasonable attorneys’ fees) related to unpaid invoices.  Anova is not responsible for any tax credits due to Customer submitting certificates past Jan 31 of the then current year.

 

Upon Service Activation Date, Anova shall adhere to the following Service Level Agreement (‘SLA”) criteria for the respective products as defined below.

Metro Wireless Product availability SLA during Hours of Operation:

For all wireless transport products less than 100KM in total distance (“Metro Wireless Products”), the Service will be deemed unavailable during any period where the bit-error-rate (BER) exceeds 10-7 for greater than any one (1) minute interval during Hours of Operation as set forth below, provided that Excused Outages shall be excluded from the calculation.

Metro Wireless Product availability SLA Credits:

In any calendar month, a credit shall equal the total amount of time any one of the Products  (tested from the endpoints specified in the respective product’s LOA/CFA) is less than 99.9% available at a BER below 10-7 for greater than any one (1) minute interval shall be divided by the total Hours of Operation in that same calendar month and the result multiplied by the current monthly recurring cost for the specific Product that is affected.

Long Haul Wireless Product availability SLA during Hours of Operation:

For all wireless transport products greater than 100KM in total distance (“Metro Wireless Products”), the Service will be deemed unavailable during any period where the bit-error-rate (BER) exceeds 10-6 for greater than any one (1) minute interval during Hours of Operation as set forth below, provided that Excused Outages shall be excluded from the calculation.

Long Haul Wireless Product availability SLA Credits:

In any calendar month, a credit shall equal the total amount of time any one of the Products  (tested from the endpoints specified in the respective product’s LOA/CFA) is less than 98% available at a BER below 10-7 for greater than any one (1) minute interval shall be divided by the total Hours of Operation in that same calendar month and the result multiplied by the current monthly recurring cost for the specific Product that is affected.

Fiber product availability SLA during Hours of Operation: 99.99

Fiber product availability SLA Credits:

In any calendar month, a credit shall equal the total amount of time any one of the Products (tested from the endpoints specified in the respective product’s LOA/CFA) is less than 99.99% for greater than a five-minute internal shall be divided by the total Hours of Operation in that same calendar month and the result multiplied by the current monthly recurring cost for the specific Product that is affected.

Availability SLA Credits:

In any calendar month, a credit shall equal the total amount of time any one of the Products  (tested from the endpoints specified in the respective product’s LOA/CFA) is less than 99.99% available at a BER below 10-7 for greater than any one (1) minute interval shall be divided by the total Hours of Operation in that same calendar month and the result multiplied by the current monthly recurring cost for the specific Product that is affected.

Latency Overage Credits (all products):

In any calendar month, if a Customer’s latency (tested from the endpoints specified in the respective path’s LOA/CFA) is greater than 1% over the Latency SLA, then such Customer shall be entitled to a credit equal to the period of time the Customer’s latency was below the Latency SLA divided by the Hours of Operation in that same calendar month multiplied by the current monthly recurring cost for the specific Customer service that is affected.

 

Hours of Operation are set forth below, except for exchange holidays and subject to Excused Outages. Scheduled maintenance shall take place outside of the Hours of Operation.

Hours of Operation:

Monday – Friday: 7:00am – 9:00 pm Eastern Time

All other times are maintenance hours.

 

Emergency maintenance (“Emergency Maintenance”) pertains to urgent maintenance activities such as patches, fixes, etc. Emergency Maintenance may occur outside of Scheduled Maintenance intervals. When Emergency Maintenance is required, Anova will use reasonable efforts to notify Customer and provide the appropriate maintenance information.

 

Excused Outages include:

  • Force Majeure Events
  • Scheduled Maintenance and Emergency Maintenance
  • Complete or partial blockage of line-of-sight in the Wireless Network not caused by Anova or its subcontractors or agents
  • RF interference originating from outside of the Wireless Network not caused by Anova or its subcontractors or agents
  • Outages or service degradation due to Customer’s or the act, omission, or equipment of any third party under Customer’s control, or to any condition within the data center infrastructure outside of Anova’s network demarcation and outside of Anova’s control.
  • Outages resulting from the loss of commercial power

 

Effective Date; Terms; Termination

All orders shall be immediately effective and binding upon execution by both parties on the date an order form is singed by both parties (the “Effective Order Date”).  If the parties execute the document on different dates, the Effective Order Date shall be the latest execution date. There shall be a separate term for each product in any order form. The Initial Service Term for each product on an order form shall only begin on the Service Activation Date.

Anova shall install all products according the requested dates on the order form, and upon completion of installation, Anova will email an Order Completion Notification (“OCN”) to Customer.  Customer shall complete acceptance testing within three (3) business days upon receipt of an OCN.  The date of the OCN, plus three business days, shall be deemed as Service Activation Date.

Subsequent to the Initial Service Term, all products will automatically renew for subsequent one-year term (“Renewal Term”), until either party provides the other party written notice of non-renewal at least sixty (60) days in advance of the end of the current Renewal Term. Absent notice of non-renewal after the Initial Service Term or Renewal Term, products shall continue to be provided by Anova and invoiced to the Customer.

Commencing upon the current term renewal and every subsequent renewal thereof, Anova agrees to provide (90) days’ notice for any increase in the MRC for all products and such rate increase shall be no more than 7.5 percent (7.5%) per year so long as Customer remans on one-year terms. Anova reserves the right to increase its annual rate increase above 7.5% for products with terms of less than one year.

The Early Termination Charge (“ETC”) for all Products listed herein, shall be an amount equal to 100% of the MRC for each terminated Service multiplied by the number of months remaining in the Initial or Renewal Term.

Unless earlier terminated in accordance with the terms and conditions of the MSA, order forms shall remain in effect until expiration of all terms for all products covered by the order form. Upon expiration of all terms for all such products, an order form shall automatically terminate.

 

Cross Connects and Associated Billing

Cross connects or any NYSE/ICE or other exchange related connection/access fees billed to Anova are not included in the pricing and are the full responsibility of the Customer. Any such access fees shall be added to the Customer invoice with an additional 15% administrative fee.

Customer is responsible for all ordering all cross connects to the Anova LOA/CFA unless otherwise set forth in the order form. If Anova provides or orders cross connects, the price of such cross connects is will be set forth in the order and billing will begin ten (10) business days after the cross connect is completed or when the circuit is activated, whichever is sooner.

Once LOA/CFA is issued, where Customer is responsible for the cross connects (i.e., no price for cross connects is set forth in the order form), Customer has fifteen (15) business days to complete cross connects before invoicing for the product(s) begins.  In such case, the OCN shall reflect fifteen (15) business days after the issuance of both LOA/CFAs as the Service Activation Date.

 

Resale Usage Terms

Customer may use the Anova products solely as a transmission medium for telecommunications services (“Authorized Use”) to be used by Customer and its Affiliates.  Customer shall not resell, lease, sublease, sub-divide, exchange, or otherwise provide connectivity obtained from Anova pursuant to this order form to any third party that is not an Affiliate of Customer (“Restricted Users”). Customer acknowledges that the rates for the services ordered pursuant to this order form reflect discounted pricing based upon the Customer’s agreement to this restriction.

Any resale, lease, sublease, sub-division, exchange or other provision of the Anova Product or connectivity to Restricted Users by Customer using these services shall be a material default of Customer’s obligations under this order form permitting Anova to terminate the order form for cause, with Customer owing Anova full early termination charges as set forth in the order form. Anova may inspect Customer’s use of the Service at any time during normal business hours upon no less than twenty-four (24) hours prior notice, in order to verify Customer’s compliance with this paragraph of the order form.

 

Attorney Fee Limitation Provision

Should either party institute any legal proceedings against the other for breach or failure to perform any provision contained in an order form, the GOTCs or a MSA and prevail in such action, the non-prevailing party shall in addition be liable for the reasonable costs and expenses of the prevailing party, including its reasonable attorneys’ fees at trial and through appeal; provided, however, that in no event shall the prevailing party be entitled to recover an amount hereunder in excess of the lesser of 25% of the damages awarded or $50,000, whichever is less.

 

Governing Law

These GOTCs are governed by and shall be construed in accordance with the laws of the State of Illinois without regard to its choice of law principles, except and to the extent that the Communications Act of 1934, as amended by the Telecommunications Act of 1996, and as interpreted by the FCC, applies to this Agreement

Exchange Provider and Market Data Services Usage Terms

Definitions:

“Exchange Provider(s)” means one or more financial exchanges which supply Anova with raw financial market data.

“Market Data Services” means redistribution of raw financial market data of Exchange Provider(s) provided by Anova to Customer under the terms of this order form and the MSA.

Customer has no greater right to use the Product than Anova can legally provide. Customer shall not use any product in violation of an order form, any law, rule, regulation, or order of any governmental authority having jurisdiction over Customer’s use of the Product, or any franchise, license, agreement or certificate relating to the Anova System. Customer will discontinue any such violation promptly following notice from Anova or such other Regulatory Authority having jurisdiction over the use.

Anova may process Exchange Provider documentation and manage Exchange Provider billing with Customer as Exchange Providers so require. Customer acknowledges Exchange Provider rules may require a separate contractual relationship and fees between Customer and Exchange Provider which shall be the responsibility of the Customer.

Customer will be entitled to receive market data only after completing the necessary forms and agreements of any Exchange Provider from which it wishes to receive information and only after Anova receives notice from that Exchange Provider that it has approved the Customer.

Customer may receive and use Market Data Services solely as and to the extent described in the data agreements the Customer enters into with each specific Exchange Provider. Any re-dissemination or other use of Market Data Services is prohibited.

 

Acceptable Use Policy (“AUP” or “Policy”) Anova reserves the right to take all actions necessary, in its discretion, to enforce this AUP, including the immediate termination of your services without prior notice if you violate this AUP and such violation poses an immediate threat of significant harm to Anova’s System. For the purposes of this AUP, a “System” is defined as any Anova network component, computing device, or software application. The examples provided below of prohibited activities are not exhaustive.

a. Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System. Use of tools designed for compromising security is prohibited except as may be allowed under the MSA in connection with confidentiality, security events or regulatory matters (e.g., Section 13 (Certain Regulatory Matters), Section 14(n) (Confidential Information). Examples of these tools include, but are not limited to, password guessing programs, cracking tools, or network probing tools.

b. Disruptions of Network Communication. “Disruptions”, for the purpose of this AUP section, includes, but is not limited to, network sniffing, ping floods, packet spoofing, denial of service, malformed packets, and forged routing information. Any activity which could result in the suspension of Anova’s production exchange connectivity is expressly prohibited.

c. Our Monitoring and Enforcement We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of our services. We may investigate violations of this Policy by you or misuse of Anova services by you. We may report any of your activity that violates any law or regulation to appropriate law enforcement officials or Regulatory Authorities. Our reporting may include disclosing customer information as required under Applicable Law by such law enforcement officials or Regulatory Authorities. To the extent such cooperation is required by Applicable Law, we also may cooperate with appropriate law enforcement agencies and Regulatory Authorities to help with the investigation and prosecution of your illegal conduct by providing network and systems information related to alleged violations of this Policy.

d. Reporting of Violations of this Policy If you become aware of any violation of this Policy, you will make reasonable efforts to promptly notify us and provide us with reasonable assistance, as requested, to stop or remedy the violation. To report any violation, please e-mail [email protected].