MASTER SERVICE AGREEMENT

GENERAL TERMS OF SERVICES

These General Terms of Services govern all services provided and any order for service (“Service Order”), and is the Master Services Agreement (the “Agreement”) between Customer and Telco Heoldings, Inc. d/b/a THinc. Forward (“THinc. Forward”).   

By accessing or utilizing any of the Services or products offered by THinc. Forward, you agree to be bound by the terms of this Agreement. These Terms of Services supersede all earlier versions and require mandatory arbitration of disputes. Please read these Terms of Services carefully, as they describe your legal rights and obligations. This Agreement shall become effective as of the date of (1) your signature on a Service Order or your electronic signature on or acceptance of this Agreement, (2) the activation of your account or (3) your receipt of an e-mail from THinc. Forward confirming your order, whichever happens first.  Customer may be referred to using “you” and “your” herein.

 1. Term. The “Term” of Services to be provided to Customer from THinc. Forward shall be as set forth in the Service Order.  If no term of months is set forth in the Service Order or Customer does not select a longer term, the Agreement shall be one 12-month term. The Agreement shall automatically renew, after the original Term, for an additional 12-month term. Either party may terminate this Agreement (a) at the end of any initial or renewal term by providing the other party with at least thirty (30) days written notice; (b) except as otherwise stated herein, during any initial or renewal term if the other party breaches any material term or condition of this agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of the same; or (c) at any time upon thirty (30) days written notice to the other party. If Customer terminates Service before the term selected by Customer for any reason, or THinc. Forward terminates Services for Customer’s breach of this Agreement or the THinc. Forward AUP, Customer may be subject to an early termination liability. The early termination liability shall equal 100% of the monthly recurring charges for the terminated Services multiplied by the number of full months remaining in the term.  Further, Customer shall be liable to and immediately pay THinc. Forward for any discounts applied to the original Term of the Services, any equipment fees and any underlying third party charges that THinc. Forward incurs as a result of the early termination.  All termination notices to THinc. Forward must be sent to: hensonsupport@thincforward.com. Thinc. Forward may restrict or suspend your rights under this Agreement and Customer’s use of the THinc. Forward Service at any time to the extent THinc. Forward deems it is necessary to protect the THinc. Forward network. Notwithstanding any other provision of the Agreement, THinc. Forward may elect in its sole discretion to terminate this Agreement and any or all outstanding Service Orders upon providing Customer with written notice of such election. In such event, the effective date of termination shall be thirty (30) days from the date of such notice.

 2. Fees and Billing. Customer agrees to pay the amounts billed by THinc. Forward to Customer which shall include activation/installation charges, non-recurring charges, equipment charges, and monthly recurring charges and any other fees indicated in a Service Order or as set forth herein or in any addendum to this Agreement, or any cost recovery fees or government surcharges (collectively, “Service Fees”) within thirty (30) days of invoice.  You agree to pay all Service Fees and other charges incurred on your account, including any and all city, state or federal taxes and surcharges, whether imposed on THinc. Forward or directly on you. THinc. Forward reserves the right to change the rates and charges for any renewal term by providing you reasonable written notice in advance of the effective date of change.  Any monthly recurring fees that contemplates a fixed amount of bandwidth usage, usage of minutes for domestic and international voice use shall be subject to an additional usage charge for any minutes that exceed the fixed amount. Unless otherwise indicated in a Service Order, THinc. Forward shall limit and cap usage for voice service at a standard usage rate, which shall be provided to Customer, and Customer may be billed for overages.

All fees and charges will be due “(Due Date”), in U.S. dollars, on the first day of the service month as indicated on the THinc. Forward invoice and may be charged to your Payment Account without further notices from THinc. Forward. Billing is invoiced monthly in advance and will commence when the connection from the THinc. Forward network is completed to your equipment and service is initiated. All recurring months charges are due at the beginning of the service month. Accounts are in default if payment of all amounts due is not received forty-five (45) days after date of invoice and are subject to an interest rate on the outstanding balance of either 1.5 % per month or at the maximum allowable rate under state law, whichever is lower. Accounts unpaid (60) days after date of invoice may have the Service interrupted or terminated. Such interruption of Service does not relieve you of your obligation to pay for the Service. Only a written request to terminate your service, in accordance with these Terms, relieves you of your obligation to pay for the Service. If you default, you agree to pay THinc. Forward its reasonable expenses, including any attorney’s or collection agencies fees, incurred in enforcing its rights.

“Payment Account” shall refer to the credit card account provided by you upon registration to pay for Services. THinc. Forward may add, delete, or modify the methods by which customers can pay for the THinc. Forward Services at any time without prior notice, in its sole discretion. Customer is deemed to have given THinc. Forward on-going and continuous authorization to charge any credit-card provided to THinc. Forward or any other Payment Account as long as Customer uses the Services and for any early termination liability.  If Customer pays by check, if the check is returned unpaid, Customer will be subject to immediate termination for suspension of the Services as stated above and will be charged a check return and reinstatement fee in the amount of no less than $100, but in any event an amount determined by THinc. Forward in its sole discretion.

 3. Billing Disputes. Only disputes made in good faith, in a timely manner and properly documented as required herein, as determined by THinc. Forward in its sole discretion, will be considered by THinc. Forward. To meet these requirements, Customer must provide THinc. Forward with written notice of any disputed charge(s) within thirty (30) days of the original Due Date for such charges. Along with such notice, Customer shall set forth in detail all grounds for disputing each charge and provide all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. THinc. Forward and Customer shall attempt in good faith promptly to resolve any dispute within thirty (30) days of THinc. Forward’s receipt of notice of that dispute. If a dispute is not resolved, THinc. Forward shall have the right to determine in good faith the merit of each dispute and Customer’s associated payment obligation. If THinc. Forward determines that any amount withheld in dispute is owed, Customer shall pay that amount within ten (10) days of its receipt of written notice from THinc. Forward of such determination, plus interest at the lower of 2.0% per month or the maximum rate permissible under applicable state law, calculated from the Due Date until the date payment is received by THinc. Forward Failure to pay such amount in full within such ten (10) day period shall be a breach hereof and shall entitle THinc. Forward,  in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If THinc. Forward determines that any amount withheld in dispute is not owed, THinc. Forward shall issue a credit for that amount spread out evenly in future billings over a period to be determined in THinc. Forward’s sole discretion after THinc. Forward’s determination is made. Customer’s exclusive remedy for issues relating, whether directly or indirectly, to any disputes shall be in the forum and pursuant to the laws as set forth in the Agreement.

4. Limitation of Liability. IN ADDITION TO ANY LIMITATIONS OF LIABILITY RELATED TO SPECIFIC SERVICES, INCLUDING E911, AND THinc. Forward FRAUD POLICIES, IN NO EVENT SHALL THinc. Forward OR ANY AFFILIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY PERSONALY INJURY, DAMAGE TO EQUIPMENT, LOSS OF DATA, PROFIT OR REVENUE OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES THinc. Forward OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THinc. Forward SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OR THE PROVISION OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS THinc. Forward FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY’S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. IN NO EVENT WILL THinc. Forward LIABILITY FOR ANY CLAIM (WHETHER IN TORT, CONTRACT, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN LAST MONTH OF SERVICES.

Customer acknowledges that THinc. Forward has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customer’s indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of their essential purpose.

5. DISCLAIMER OF WARRANTY. Forward MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THinc. Forward WILL NOT BE RESPONSIBLE FOR ANY DAMAGES SUFFERED BY YOU OR ANY OTHER PARTY (INCLUDING ANY SUBSCRIBERS TO OR USERS OF ANY SERVICES PROVIDED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, OR SERVICE INTERRUPTIONS. THinc. Forward EXERCISES NO CONTROL WHATSOEVER OVER THE CONTENT OF THE INFORMATION PASSING THROUGH ITS NETWORK OR OVER THE INTERNET. USE OF ANY INFORMATION OBTAINED OVER THE THinc. Forward NETWORK OR THE INTERNET IS AT YOUR OWN RISK. THinc. Forward SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF THE INFORMATION OBTAINED THROUGH ITS SERVICE.

6. INDEMNIFICATION OF THinc. Forward You agree that you shall fully defend, hold harmless and indemnify THinc. Forward, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless THinc. Forward, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that THinc. Forward shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense

7. Service Interruption: Your exclusive remedy for any unavailability or failure of the THinc. Forward network or any Services is solely a pro-rata credit on future billings for the period down from your monthly billing in THinc. Forward’s sole discretion and if applicableto your Services, any outage credits set forth in a Service Level Agreement.

8. Customer Responsible for Fraud/Insurance.  Customer is liable for all fraudulkent usage of the Services and for its own network security.  THinc. Forward recommends  that Customer purchase fraud insurance.. In the event Customer’s network security is compromised, Customer would not be financially responsible for said fraudulent service charges if it purchases the fraud insurance.  Otherwise see THinc. Forward’s Fraud Policy at www.thincforward.com/fraud 

9. Resale. Customer acknowledges and agrees that Customer may not
sell, resell, transfer, convey, white label, wholesale or in any way distribute the Services to or for the benefit of any third party without express prior written consent of THinc. Forward (which consent may be withheld in THinc. Forward’s  sole discretion). The foregoing prohibition shall apply, without limitation, to any and all fiber, circuits, equipment or other Service elements which Customer purchases from THinc. Forward.

10. Privacy. It is THinc. Forward’s policy to respect your privacy. THinc. Forward will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless THinc. Forward deems it necessary, in its sole discretion, to comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials; protect and defend the rights or property of THinc. Forward or its officers, agents, affiliates, and licensees; enforce this Agreement; or protect the interests of other THinc. Forward customers.

NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, THinc. Forward RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER’S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS AND AT ALL TIMES IN COMPLAINCE WITH THE COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT OF 1994.

Your IP address is transmitted and recorded with each message you send using the THinc. Forward Services. THinc. Forward does provide certain information in aggregate form collected from and relating to you to third persons such as advertisers.
INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED BY THinc. Forward IN THE UNITED STATES OF AMERICA. YOU FURTHER AGREE THAT THE PERSONAL INFORMATION WHICH YOU GIVE THinc. Forward WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND OTHER COUNTRIES; INCLUDING WITHOUT LIMITATION COUNTRIES IN THE EUROPEAN UNION AND ELSEWHERE. IF YOU DO NOT CONSENT TO THE TRANSFER OF YOUR PERSONAL INFORMATION INTO AND OUT OF THE UNITED STATES, DO NOT ACCEPT THESE TERMS AND CONDITIONS FOR THE THinc. Forward SERVICE. YOU FURTHER UNDERSTAND AND AGREE THAT REGARDLESS OF YOUR COUNTRY OF RESIDENCE THinc. Forward MAY DISCLOSE PERSONAL INFORMATION ABOUT YOU AND YOUR WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND YOU EXPLICITLY WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.

11. Equipment. Notwithstanding anything else in the Agreement, it is Customer’s responsibility to ensure all equipment used with the Services are properly configured and maintained. Any equipment, whether it is customer owned, rented or leased from THinc. Forward or provided to Customer by THinc. Forward for use in conjunction with Services will be subject to the terms and conditions set forth below or in the Agreement.  Customer must unpack and place the equipment in a secure and environmentally controlled space. If at any time during the Services Term a piece of equipment fails and is in need of replacing, THinc. Forward may provide replacement equipment. The equipment failure shall be determined by THinc. Forward or its third-party subcontractors working with the customer in conjunction of THinc. Forward’s technical staff. Once determined by THinc. Forward, in its sole discretion, that the equipment is need of replacing, THinc. Forward may, in its sole discretion, ship replacement equipment to Customer’s site. If THinc. Forward installs or provides equipment on Customer’s premises for the purpose of enabling THinc. Forward to provide the Services to Customer, Customer agrees to provide THinc. Forward reasonable access into Customer’s premises for the purpose of installation, demonstration, inspection, maintenance, repair and removal of the equipment, as well as THinc. Forward’s installers with a safe working environment. Additionally, Customer acknowledges that it will have no right, title or interest in any equipment that THinc. Forward installs. THinc. Forward and Customer agree that the equipment will not become a fixture and Customer shall keep the equipment free from all liens, charges and encumbrances. Customer agrees: (1) to use the equipment only for the purpose of receiving Services ordered from THinc. Forward and no other purpose; (2) to prevent any connections to the equipment that are not expressly authorized by THinc. Forward; (3) to prevent tampering, altering or repair of the equipment, or inside wiring, by any person other than THinc. Forward’s  authorized personnel; (4) to assume complete responsibility for improper use, damage or loss of such equipment regardless of cause (including damage or loss caused by force majeure events), except to the extent caused by THinc. Forward or its suppliers; and (5) to return the equipment in good condition, ordinary wear and tear resulting from proper use excepted, immediately upon discontinuance of Service. In the event the equipment is not returned in good condition, Customer agrees to pay THinc. Forward an amount for each equipment device in accordance with THinc. Forward’s standard equipment costs. THinc. Forward will only provide those equipment manufacturer warranties that THinc. Forward receives directly from a manufacturer and does not otherwise offer, and expressly disclaims, any warranty on equipment.

12.Compliance with Laws. Customer shall at all times conform its use of and comply with all state, federal and international laws with respect to its utilization of the Service.  If THinc. Forward is informed by any governmental authority or other parties of alleged illegal use of THinc. Forward facilities or THinc. Forward otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by THinc. Forward or government authorities.  Any government determinations will be binding on Customer.  If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in breach of this Agreement and THinc. Forward may immediately, and without further notice, suspend Customer’s Service.  Your use of THinc. Forward network may only be for lawful purposes. Transmission of any material in violation of any law, or regulation is strictly prohibited. You agree to hold harmless THinc. Forward from any claims resulting from your use of the Service or the use of the Service by any of your customers or others throughout your chain of distribution, including end users, which damage you or another party. 

13. Software. THinc. Forward may, in its sole discretion, provide you with THinc. Forward software (“Software”) in combination with your Services. Upon payment of all fees due and owing to THinc. Forward under this Agreement, THinc. Forward hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the THinc. Forward Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for THinc. Forward. Source code or other information pertaining to the logic design of the THinc. Forward Software is specifically excluded from the license granted hereunder.
Although certain THinc. Forward Software may be provided free of charge, THinc. Forward reserves the right to charge for the THinc. Forward Software or any updates thereto or upgrades therefore at any time.
You recognize that the THinc. Forward Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the THinc. Forward Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by THinc. Forward. You further acknowledge that you have been advised that the THinc. Forward Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of THinc. Forward, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to THinc. Forward, and that its use and disclosure must be carefully and continuously controlled. THinc. Forward shall at all times retain title to all the THinc. Forward Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder. Unless provided otherwise in the specifications for Your Services, the THinc. Forward Software supplied hereunder is for your personal or business use. You shall not permit any third party to use the THinc. Forward Software or allow access to the THinc. Forward Software from sites outside of your home or business premises except as specifically authorized in writing by THinc. Forward. The THinc. Forward Software is to be used only for the purposes specified in this Agreement and while you have custody or possession of any of the Software, you will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the THinc. Forward Software, whether such THinc. Forward Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for use pursuant to this Agreement, nor; (ii) provide or make the THinc. Forward Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of THinc. Forward. In order to protect THinc. Forward’s trade secrets and copyrights in the THinc. Forward Software, you agree to reproduce and incorporate THinc. Forward’s trade secrets or copyright notice in any copies, modifications or partial copies.

You agree to notify THinc. Forward forthwith if you obtain information as to any unauthorized possession, use or disclosure of any THinc. Forward Software by any person or entity, and further agree to cooperate with THinc. Forward at THinc. Forward’s expense, in protecting THinc. Forward’s proprietary rights. Unless agreed otherwise in writing by THinc. Forward, the THinc. Forward Software may be used only on a single computer or workstation. THinc. Forward software designed for use on portable workstations may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the THinc. Forward Software on a network except to facilitate permissible installation of the THinc. Forward Software on computers attached to the network. You warrant and guarantee that all users of the software shall be aware of and comply with the terms of this license.

Certain THinc. Forward Software is provided for online use as part of the THinc. Forward Services (the “THinc. Forward Online Software”), and the use of such software may be subject to fees as outlined in this Agreement. The THinc. Forward Online Software is hosted software which runs directly on THinc. Forward’s servers, and you may not download, install, store or make any copies of the THinc. Forward Online Software, nor may you sublicense the THinc. Forward Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the THinc. Forward Online Software or any copies thereof and not to assist any third party in doing so. The THinc. Forward Online Software is designed to be used through the THinc. Forward user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. THinc. Forward reserves the right to suspend the use of, modify or discontinue the THinc. Forward Online Software for any or all customers at any time without notice. Certain Online Software is also Third-Party Software and is subject to the applicable provisions of this Agreement. THinc. Forward may limit the functionality of any such third-party Online Software, in its sole discretion.  THinc. Forward provides its customers with the ability to order certain third-party software (the “Third Party Software”), depending on the hosting package ordered. Except for Third Party Software which is also Online Software, such Third-Party Software is delivered to THinc. Forward Customers by mail and may be ordered via customer’s control panel for a period of six months after the commencement of the THinc. Forward Services. The license conditions governing the use of the Third-Party Software may differ from THinc. Forward’s own software licenses. Customers of THinc. Forward are bound by the conditions of all licenses pertaining to such Third-Party Software and should make themselves familiar with their terms and conditions. Some such Third-Party Software is provided under license from Microsoft Corporation (“Microsoft Software”), and Customers using Microsoft Software are bound by the TERMS AND CONDITIONS Microsoft Software Products, which are incorporated herein by reference. THinc. Forward does not provide Technical Support for the Third-Party Software. THE THIRD-PARTY SOFTWARE IS OFFERED “AS-IS.” THE PROVISION AND OFFERING OF THIRD PARTY SOFTWARE BY THinc. Forward DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD-PARTY SOFTWARE, NOR CAN THinc. Forward MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD-PARTY SOFTWARE.  In the event of termination of this Agreement, or upon any act which shall give rise to THinc. Forward’s right to terminate, or upon the expiration of the license for THinc. Forward Software which is subject to a limited-duration license, any and all licenses granted under this Agreement shall terminate automatically, and you will remove, erase or destroy the THinc. Forward Software and documentation and all copies thereof, wherever located, without demand or notice.  THinc. Forward may stop providing the Software or any updates thereto, including but not limited to the Online Software or the Third-Party Software, at any time without notice or any further liability to Customer. Software for International Customers is available for download only. Certain Software (including Third-Party Software) may not be available to International Customers.

14. Choice of Law/Waiver of Jury Trial. This Agreement shall be interpreted according to the laws of Delaware, United States of America, and, where applicable, the federal law of the United States of America, without regard to conflicts of law principles.  All claims under the Agreement must be brought in the home jurisdiction of THinc. Forward.

In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND THinc. Forward THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived.  Neither you nor THinc. Forward may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND THinc. Forward ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.

15. Confidentiality, Trademark, and Copyright. During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to THinc. Forward in connection with THinc. Forward’s performance of the THinc. Forward Services (“Confidential Information”). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Agreement, and shall not, without the prior written consent of THinc. Forward, disclose or make available to any person, or use for your own or any other person’s benefit, other than as necessary in performance of your obligations under this Agreement, any Confidential Information of THinc. Forward. THinc. Forward retains all right and title to such Confidential Information.  Chicago Business VoIP and THinc. Forward are service marks of Chicago Business VoIP, LLC all rights reserved. The trademarks, logos, and service marks displayed on this THinc. Forward’s web site (collectively, the “Marks”) belong to THinc. Forward and/or its affiliates or third parties which have licensed those rights to THinc. Forward (“Partners”); THinc. Forward and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on THinc. Forward’s web site are the property of their respective owners. Unless expressly stated otherwise by THinc. Forward, you should assume that all content, images, and materials appearing on this Web Site (collectively the “THinc. Forward Content”) are the sole property of THinc. Forward. Both U.S. and international copyright laws and treaties protect such THinc. Forward Content. You may not use, reproduce, display, or sell any THinc. Forward Content without THinc. Forward’s prior written consent. You may not link to any page within THinc. Forward’s Web Site or frame any portion of the site without THinc. Forward’s prior written consent.

16. Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.

17. Non-Enforcement Does Not Constitute Waiver. Failure of THinc. Forward at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of THinc. Forward.

18. Notices. THinc. Forward communicates with Customers primarily via email. THinc. Forward may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to THinc. Forward. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement. You may provide notice to THinc. Forward in one of the following ways: by personal delivery; by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the United States mail, 1161 McDermott Drive, Suite 350, West Chester PA 19380; By Federal Express; by registered or certified mail; or by e-mail at info@thincforward.com. Such notice, statement or other document so delivered to THinc. Forward, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice by e-mail to THinc. Forward shall be deemed ineffective, null and void unless a copy of such notice is also sent by registered or certified mail and postmarked not more than five days subsequent to the giving of e-mail notice. Any such e-mail notice to THinc. Forward shall be deemed effective as of the date on which THinc. Forward receives the certified or registered mail notice.

19. Force Majeure. In the event of “force majeure” (as defined below), THinc. Forward may terminate this Agreement without liability to you. For purposes of the Agreement, “force majeure” shall mean circumstances or occurrences beyond THinc. Forward’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which THinc. Forward cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics/pandemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the THinc. Forward Services are located or maintained or through which the THinc. Forward Services are provided, and non-availability of any permits, licenses and/or authorizations required by governmental authority.  THinc. Forward reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the THinc. Forward Services (or any part thereof) with or without notice. You agree that THinc. Forward shall not be liable to you or to any third party for any modification, suspension or discontinuance of the THinc. Forward Services.

20. No Assignment By You; Assignment By THinc. Forward. This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without THinc. Forward’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. THinc. Forward may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.

21. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of THinc. Forward or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and THinc. Forward and you hereby acknowledge and agree that neither THinc. Forward nor you have executed this Agreement in reliance upon any such representation or promise.

22. Modification. This Agreement may be materially altered by THinc. Forward by posting the new version of the Agreement at www.thincforward.com/terms and if posted in this manner, shall be effective immediately upon posting such notice. In the event that THinc. Forward does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of THinc. Forward. No additional or conflicting term in any other document used by you will have any legal effect.

23. Statute Of Limitations. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.

24. Employee Non-Solicit.   Customer shall not directly and shall ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by THinc. Forward. If any employee of THinc. Forward, as a result of active recruitment solicitation by you, becomes employed by you, you agree to pay THinc. Forward at the time of such employment an amount equal to fifty (50%) of the employee’s estimated income during the first year of employment. This paragraph does not pertain to unsolicited employees that voluntarily approach you for employment.

 

TERMS OF SERVICE

VOIP SERVICES

In addition to the Master Service Agreement General Terms of Services, the following Terms of Services shall apply to THinc. Forward’s voice Services. 

E911/911:   The THinc. Forward voice Services are subject to restrictions and disclaimers on the E911/911 services that can be found at www.thincforward.com/e911. Any use of call forwarding to mobile phones or the use of VoIP to mobile software applications will not be compatible with THinc. Forward’s E911/911 services and 911 calls will have to be routed by your mobile provider. 

Operational Matters. The Customer shall be solely responsible at its own expense for connecting to the THinc. Forward VOIP network, for procuring the necessary facilities or equipment required to interconnect and for coordinating the provisioning of its respective matching facilities and/or equipment to utilize the Services.    THinc. Forward will use its best endeavors to provide the Services on the anticipated date of Services commencement. The Parties shall coordinate the management of their respective system facilities, with each Party being responsible for providing and operating, at its own expense, its respective network facilities.

Telemarketing Traffic. THinc. Forward does not accept for termination any dialer–originated telemarketing traffic or any fax broadcasts, including any traffic that would violate the Telephone Consumer Protection Act (“TCPA”), which prohibits the sending of facsimile advertisements without the prior consent of the recipient, do not call laws, or similar consumer protection laws.

Traffic Control By Customer. In addition to any other terms and conditions of the Agreement or the TOS, Customer shall bear the following responsibilities in connection with the Service:

Customer shall manage the integrity of the traffic egressing Customer’s network;

Customer shall screen, and block calls destined to (a) unassigned numbers or (b) numbers with invalid formats;

Customer shall manage and correct, as necessary, any fraudulent calling patterns or calling patterns perceived as fraudulent that may harm or adversely affect THinc. Forward or its network.

In the event that Customer fails to comply with the requirements described above, THinc. Forward shall have the right (but not the obligation) to take protective action against Customer in order to protect THinc. Forward’s egress network, which protective action may include, without limitation, the temporary blocking of Customer’s traffic until the applicable problem is reasonably resolved.

Service Limitations.  The Service is not intended to replace Customer’s primary phone service. All telecommunications traffic carried by the Service(s) must be IP originated. Customer acknowledges and agrees that the Service(s) may not be compatible with all communication equipment. In addition, different regulatory treatment may be applied to the Service(s) than is applied to other telecommunications services, which may affect Customer’s rights before regulatory agencies and other governmental bodies.

THinc. Forward does not support 0+ calling (including without limitation collect or third-party billing), 900 and 976 calls, and 10-10 “dial-around” calls. The Service(s) may not support 311, 411, 511 and/or other x11 services in some or all Service areas. Customer understands and acknowledges that access to the aforementioned functionality is not part of the Service(s).

Customer Network Facilities.   Customer shall be solely responsible for any installation, testing, maintenance and security of its own network facilities.

Database Updates. Customer shall furnish all information reasonably requested by THinc. Forward in order for THinc. Forward to provide each Service. Customer shall ensure that all information and data that it has given or that it will give to THinc. Forward, including but not limited to Customer’s billing information, mailing address and email address, is current and accurate at all times. THinc. Forward shall have no responsibility to verify the accuracy of any information provided by Customer and shall have no liabilities or obligation relative to any amount billed or notices delivered incorrectly as a result of inaccurate information provided by Customer and Customer’s failure to correct or update the same.

Traffic Requirements. If during any 24-hour period, Customer’s Answer Seizure Ratio (ASR) is calculated by THinc. Forward to be below 60.0% and/or the Average Length of Call (ALOC) is calculated by THinc. Forward to be below 60.0 seconds, THinc. Forward may immediately and without notice:

• Charge Customer a surcharge of $0.01 per call attempt, which shall be in addition to all other fees and charges billed to Customer for its consumption of the Service(s); or
• Modify its billing method and charge Customer for its consumption of Service(s) in accordance with THinc. Forward’s then current Short Duration Rate Deck.

Local Number Portability (LNP). If Customer desires to port a number either to or from THinc. Forward’s network, Customer shall execute and/or deliver to THinc. Forward all documents and information requested by THinc. Forward, including, but not limited to, all required Letters of Authorization (“LOA”). Customer acknowledges and agrees that THinc. Forward shall have the right to refuse to port any number to its network for any reason. Customer agrees that THinc. Forward, in its sole discretion, may port a number to any third-party provider selected by THinc. Forward in order to provide the Service(s), and that THinc. Forward may be required to be named as the Customer of Record for such number. THinc. Forward will make reasonable commercial efforts to execute all port requests; however, THinc. Forward has no control over any porting process (either to or from THinc. Forward’s network). As such, THinc. Forward makes no guaranties or warranties that a number will be ported on a particular day, or that a submitted port request will actually result in the number being ported. THinc. Forward will inform Customer of port dates when such dates are known to THinc. Forward. THinc. Forward reserves the right to change the port date in its sole discretion. Customer agrees to comply with all applicable rules, regulations and orders, including but not limited to all FCC and public utility commission rules regarding number porting. THinc. Forward makes no warranty that the Service(s) associated with a number will be uninterrupted or error free during any porting process. Customer acknowledges that, if any account associated with the number being ported is canceled or suspended prior to the port date, such number may not be eligible for porting. A port request to THinc. Forward to move a number away from THinc. Forward does not act to terminate Customer’s Agreement. It is Customer’s sole responsibility and obligation to cancel its account(s) with THinc. Forward in addition to submitting a port request and Customer shall be solely responsible for any contractual obligations it has with such THinc. Forward and any applicable fees and charges, including early termination fees. Number porting is done at the Customer’s sole risk. Under no circumstances shall THinc. Forward be liable for any damages, including, without limitation, loss of profits, associated with porting or not porting a number. Customer agrees to indemnify and hold THinc. Forward, the third party vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys’ fees and costs of litigation, incurred or suffered by such party relating to or arising out of any number port requested by Customer, including those arising from any slamming complaints.

Customer acknowledges that requests to port numbers away from THinc. Forward’s Network will be completed not less than seven (7) days from the date of the request. Customer also acknowledges that it will not port any vanity or 800 numbers without verification from the end user. Customer agrees to comply with all LNP policies established from time to time by THinc. Forward.  THinc. Forward may modify its LNP policies at any time with or without notice to Customer and customer agrees to comply with all such modifications.

Usage.  THinc. Forward reserves the right, in its sole discretion, to examine Customer’s voice, fax and toll-free calling usage pattern and adjust the rates or impose a surcharge if such usage pattern is not normal or customary under generally accepted industry standards for the type of voice Service being used (“Non-Customary Calling”). In the event THinc. Forward adjusts Customer’s rates due to Non-Customary Calling, Customer’s sole and exclusive remedy shall be to terminate the remaining usage commitment (if any) under the applicable Service Order. In such event, Customer shall continue to be liable for any access loop monthly recurring charges through the remainder of the Service Order Term.

If 10% or more of Customer’s completed calls during any billing cycle constitute calls with a duration of less than six seconds in length (each, a “Short Duration Call”), THinc. Forward may charge each Short Duration Call during such Billing Cycle (including those Short Duration Calls under the 10% threshold) an additional $0.01 surcharge per call. THinc. Forward shall rate all such calls to the fourth (4th) decimal. In the event of any inconsistency between the provisions of this paragraph and an applicable pricing table set forth in an Attachment or a Service Order, the provisions in this paragraph shall control.

If the completion percentage of Customer’s attempted calls is in excess of 50% (the “Non-Completed Call Percentage Threshold”) for any given week on any given trunk group, THinc. Forward may, in its sole discretion: (a) upon 30 calendar days email notice, disconnect any and all circuits providing the applicable Service; or (b) charge a surcharge equal to $20 per DS-O for all circuits providing such Service.

All domestic calls will be rated in six (6) second increments with a six (6) second per call minimum and rounded to the third decimal place for each call charge. All international and calling card calls will be rated in six (6) second increments with a thirty (30) second per call minimum and rounded to the third decimal place for each call charge except Mexico, which will be rated in sixty (60) second increments.

For purposes of this section and the subparagraphs thereunder, the following terms and definitions shall apply. “Time Point” or “TP” shall be the measurement method for call duration. TP-1 is the “request for service event”; TP-6 is the “answer detected event”; TP-7 is the “call disconnect event”. Call duration shall be measured as follows:   for Carrier Toll-Free Transport (TDM) and CIC products (TDM and VOIP), call duration is measured Disconnect time (Time Point 7 minus Start time (Time Point 1); or for all other circuit switched and NOS products (TDM), call duration is conversation time and is measured Disconnect time (Time Point 7) minus Service Established time (Time Point 6); or (c) for Voip Services, call duration is conversation time and is measured as Disconnect Time (BYE message) minus Service Established time.

The following minimum utilization requirement (“Utilization Commitment”) shall apply to end user dedicated 1+ outbound service and end user Dedicated 8xx Inbound Service:

No THinc. Forward port (“Port”) to which any dedicated access loop (“DAL”) is connected may have zero traffic utilization for thirty (30) consecutive days following the first three (3) calendar months after connection of the Port to the DAL.

If the Customer violates the foregoing Utilization Commitment, THinc. Forward may, in its sole discretion and upon thirty (30) calendar days e-mail notice, disconnect the DAL from the Port. This will not excuse Customer from paying the monthly charge for such Loop or release Customer from any monthly usage commitment set forth in any applicable Service Order.

Subject to THinc. Forward’s Underutilization Policy, if in any applicable monthly or annual period, Customer’s total utilization is less than the Utilization Commitment, Customer shall pay THinc. Forward an underutilization charge (“Underutilization Charge”) equal to the difference between the Utilization Commitment and Customer’s total utilization of the applicable Services for such monthly or annual period. Such payment shall be in addition to any current usage or recurring monthly charges and shall be paid within thirty (30) days of Customer’s receipt of an invoice containing such Underutilization Charge(s). Customer hereby agrees that the Utilization Commitment and Underutilization Charge(s) are reasonable.

Customer is solely responsible for fraudulent calls or data transmitted utilizing the Services.  Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and THinc. Forward shall have no liability therefor.  Customer is solely responsible for payment of all long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder regardless of whether such use was intended or authorized by Customer.  Customer shall defend, indemnify and hold harmless THinc. Forward from and against all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services.  Customer shall not be excused from paying THinc. Forward for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services.  In the event THinc. Forward discovers fraudulent calls being made, nothing contained herein shall prohibit THinc. Forward from taking immediate action, without notice to Customer, that is reasonably necessary to prevent such calls from taking place.  Notwithstanding the foregoing, it is understood that THinc. Forward is under no obligation to investigate the authenticity of calls charged to Customer’s account and shall not be liable for any fraudulent calls processed by THinc. Forward and billed to Customer’s account.  See THinc. Forward’s Fraud Policy at www.thincforward.com/fraud.

Recording of Calls. THinc. Forward hereby puts Customer on notice that any calls between Customer and THinc. Forward personnel may be recorded for quality assurance and other commercially reasonable purpose. Customer hereby acknowledges and agrees that such calls may be recorded.  Customer is solely responsible for complying with all one-party and two-party consent rules regarding the recording of telephone calls.  

Service Delivery. THinc. Forward will deliver Service to the network point of presence (POP) or demarc, and a Service is considered installed and working when it is turned over clean at the POP or demark, as applicable. Extension of Service beyond the demarc is the responsibility of Customer. If Customer elects to and use THinc. Forward and THinc. Forward chooses to extend the beyond the demarc, the Service will not be covered under THinc. Forward’s SLA. If THinc. Forward extends Service beyond the demarc, the Service will be considered in working condition once accepted by Customer and THinc. Forward will have no further obligation to maintain the Service. Any delay in extension of the Service beyond the demarc by THinc. Forward will not delay the billing of the Service or Customer’s liability for such billing.

CPNI. THinc. Forward acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer’s proprietary network information (“CPNI”). Such CPNI includes information about the telecommunications Services purchased by Customer from THinc. Forward, Customer account activity (for example, telephone numbers) and charges incurred by Customer. With Customer’s consent, THinc. Forward may use this information for marketing purposes to offer Customer the full range of products and services available from THinc. Forward that may be different from the type of Services Customer currently buys from THinc. Forward.  In addition to private line and other dedicated transport services, THinc. Forward and THinc. Forward affiliate’s offer other services, including voice, collocation, hardware (by sale or lease) and managed services. A more complete description of THinc. Forward and its product and service offerings are available at http://THincForward.com or Customer may contact its THinc. Forward account manager. THinc. Forward may also share Customer information with its affiliates, agents and partners to offer the services and products described above. THinc. Forward requires Customer’s consent for THinc. Forward and its affiliates, agents and partners to use this information to offer the services and products described above. By signing the Agreement and taking no further action, Customer gives THinc. Forward Customer’s consent to use and disclose Customer CPNI as described above. Customer may refuse CPNI consent by signing the Agreement but then notifying THinc. Forward in writing of Customer’s decision to withhold Customer’s consent. Customer’s consent or refusal to consent will remain valid until Customer otherwise advises THinc. Forward Customer’s decision to approve or disapprove use or disclosure of Customer CPNI as described in this section will not affect THinc. Forward’s provision of Service to Customer.