Appendix 4

PUBLIC INTEREST NETWORKS / INTERNET AREA NETWORK SERVICE AGREEMENT


I. DEFINITIONS

“Agreement”: This Service Agreement by and between Public Interest Network Services, Inc., a corporation with office located at 50 West 17th Street, Ninth Floor, New York, NY 10011 and “Client” as identified in Appendix A.
“PINS”: The term Public Interest Network Services, as it is used hereafter in this Agreement, shall mean Public Interest Network Services, Inc., its related corporate entities and its subcontractors involved in the provisioning of Service.
“Order”: One or more Appendixes, attached to this Agreement, detailing the services provided by PINS.
“Billing Period”: A period of time, generally one month, as agreed to between Client and PINS.
“Services”: The term “Services” encompasses both “data Services” and “telephone Services.”
“Data Services”: The equipment, facilities, programming and software provided by PINS to facilitate hosting of Client data on the PINS network, private networks maintained on behalf of the Client by PINS, and the connection of the PINS network to the Internet. Through the Data Services, PINS provides Internet hosting services enabling public access via the Internet of Client’s Worldwide Web site as well as Internet access from Client’s dedicated or dial in access service.
“Telephone Services”: Access lines, telephone numbers, 800/888/877 (toll-free) telephone numbers, conference calls, calling cards, pre-paid calling cards, directory assistance, 1+ direct dial, equal access service, local, regional, intrastate, interstate and international inbound and outbound telephone calls, international callback, remote call forwarding, voicemail and related services.
“Service Commencement”: The first day in which Data and/or Telephone Services become available for use by the Client.
“IAREANET”: The Internet Area Network and associated entities.


II. TERM

This Agreement begins on the date of Service Commencement and extends on a month-by-month basis unless otherwise specified in the Order. If multiple services are ordered, the date of Service Commencement is the availability date of the last service which is delivered. Unless cancelled by Client in writing at least thirty (30) days prior to the expiration of the Term, any services are renewed on a month-to-month basis until cancelled as described in section VI. Should additional service orders be executed at any time, the Term shall be understood to extend until the expiration of the last delivered service.


III. PAYMENT AND INVOICING

Client agrees to pay all recurring and non-recurring charges specified in the Order. Charges shall be invoiced at the start of each billing period, as specified in the Order, and payment in U.S. currency shall be due within thirty (30) days of receipt of such invoice. Interest charges of one and one-half (1.5) percent per month or the highest rate permitted by law, whichever is less, may accrue daily on all amounts not paid within thirty (30) days of the date of the invoice.

Upon receipt of the signed Order for Service under this Agreement, PINS will begin Service Commencement. Charges for Access Lines do not commence until delivered by PINS’ underlying carrier and tested as working. Charges do commence upon acceptance, whether or not such lines are connected to Client’s equipment and actually used by Client. At its next monthly billing cycle, PINS will invoice for the Non-Recurring Charges, plus amount of one (1) month's recurring charges specified in the Order. PINS reserves the right to suspend Service if payment is not received within thirty (30) days of the date of the invoice.

Client agrees to make payment arrangements via Credit Card or Electronic Funds Transfer (EFT) and authorizes Internet Area Network to provide the necessary billing information to PINS so automatic payment can be done. In the event Client wishes to withhold some or all of the payment due for cause, due to a service interruption, incorrect billing/setup information, or other reason allowed for in this contract. Client agrees to allow PINS to collect payment for any and all portions of the invoice not in dispute. PINS agrees to defer collection of disputed amount until the dispute has been resolved.

IV. SERVICE INTERRUPTION AND CONTACT PROCEDURES

Client will contact the PINS designated point of contact identified in the Order for all problems that relate to PINS Service. Client will contact PINS if the problem is not resolved within a reasonable time or if there is any customer dissatisfaction with working with PINS to resolve a problem. Problems may be addressed via e-mail to support@pins.net, which reaches PINS’ management and service personnel; via phone at 212-479-1700; or via postal mail at Public Interest; 50 West 17th Street, 9th Floor; New York, NY 10011.



V. ALLOWANCE FOR SERVICE INTERRUPTIONS

A. PINS maintains a Service Level Agreement with its Clients which describes the goals for uptime and service availability. The service level agreement is available online at http://www.pins.net/support/sla.shtml, and is incorporated into this contract by reference.

B. Client shall not receive credit if an interruption is:

i. caused by negligence or willful misconduct of Client or others authorized by Client to use the services provided by PINS;

ii. due to a failure of power, facilities, equipment, systems or connections not provided by PINS;

iii. a result of scheduled maintenance, but only to the extent that such interruption does not exceed the interruption which would be caused by such scheduled maintenance if properly performed;

iv. due to any cause beyond PINS’ control.


VI. TERMINATION OF AGREEMENT

A. Notice of Termination of Service by Client will only be accepted in writing (including electronic mail to support@pins.net) at least thirty (30) days in advance. No other termination methods are acceptable. If Client terminates the Agreement except in accordance with Article VI.C, or if PINS terminates the Agreement for Cause in accordance with Article VI.B, Client shall immediately pay PINS an early termination charge for each month remaining in the term calculated as follows:

i. For any of the first through twelfth months of the term remaining, the early termination charge is 100% of the minimum usage charge plus 100% of the fixed recurring charges.

ii. For any months over the twelfth remaining in the term, the early termination charge is only 50% of the minimum usage charge plus 100% of the fixed recurring charges.

B. For Cause – PINS reserves the right to suspend Service to Client for failure to comply with the requirements of Article VII, Sections B and C. Such suspension will remain in effect until Client submits written assurance, satisfactory to PINS, that it has corrected the problem. Unless and until service is restored, Client shall pay PINS an amount equal to 50% of the minimum usage charges and the fixed recurring charges applicable through the end of the Term as specified on the Order.

C. For Cause – Client reserves the right to terminate the service provided under this Agreement at any time for cause. Specifically, if there are chronic performance problems at a specific site that are reported by Client to PINS, and PINS fails to rectify these problems with thirty (30) days of written notice as to the nature of the performance problems, Client may cancel service without penalty. Client shall be responsible for the payment for all usage charges and service fees incurred up to the date of termination. The minimum usage requirements provided under this Agreement will be modified to reflect the cancellation of service. Client may choose to retain some services provided under this Agreement that were not affected by performance problems. All terms of this Agreement will continue to apply to the Client for any services that were not cancelled under this clause.

D. For Non-Payment – PINS reserves the right to suspend Service to Client for failure to keep account balance current. Specifically, PINS may provide ten (10) days written notice that Service will be suspended whenever the Client’s account becomes sixty (60) days past due. Client must then bring the account current or present a payment plan acceptable PINS to avoid service disruption. In the event service is interrupted for non-payment, Client shall be deemed to have terminated the Agreement, and shall immediately pay the overdue amount, accrued late fees and the early termination charges as specified in Article VI, Section A.

E. Changes in Service – Client may terminate this Agreement without penalty in order to take advantage of lower pricing offered through a revision of PINS’ price list provided that Client enters into a new agreement with PINS. Such new agreement shall begin on the date of termination of this Agreement, and extend for the new Term of the same or longer length as the original Term of this Agreement.

F. Upgrade in Service during the Term of this Agreement shall not be considered Termination.


VII. RIGHTS AND OBLIGATION OF CLIENT

A. Client shall at its own expense provide all necessary preparations required to comply with PINS’ installation and maintenance specifications. Support for resources at the Client site, unless specifically indicated otherwise, will be the responsibility of the Client.

B. Client shall neither permit nor assist others to use Service for any purpose other than that for which they are intended; fail to maintain a suitable environment as specified by PINS; or alter, tamper with, adjust or repair the Service. In the event of such alterations, tampering, adjustments or repairs by Client, PINS shall be completely released from any liability or obligation (including any warranty or indemnity obligation) to Client relative to the Service; and client shall be liable to PINS for costs or damages incurred by PINS.

C. Client agrees that service is to be used for typical residential or business use, and agrees not to sell, resell or transfer the Service to any other person for any purpose, or make any charge for the use of the Service, without the prior express written permission of PINS. Client understands that voice services under unlimited calling plans is not for auto-dialing, call-center activities, continuous or extensive call forwarding, call relaying, telemarketing, fax broadcasting or fax blasting, or least-cost routing of ILEC or other high-cost domestic traffic termination. If, in its sole discretion, PINS determines that the service is being used for these tasks, PINS reserves the right to terminate or modify the service agreement, and apply an administrative penalty of up to $150 per day while Client is engaged in prohibited activies.

D. Client shall not nor shall it permit or assist others to abuse or fraudulently use Service, including but not limited to the following:

i. Obtaining or attempting to obtain Service by any fraudulent means or device with intent to avoid payment;

ii. Accessing, altering, or destroying any information of any third party by any fraudulent means or device, or attempting to do so; or

iii. Using Service so as to intentionally or maliciously interfere with the use of the PINS Network by other Clients or authorized users; or in violation of the law or in aid of any unlawful act;

iv. Violation of any of the terms and conditions of this Agreement.

E. Connectivity to the PINS Network for Service, maintenance, and information retrieval is generally provided via local access through the public telephone system to provide Client a link to PINS. It is understood that PINS does not normally own or control the various cable, telecom¬munications or other facilities to which it may require access, except those specifically identi¬fied as belonging to PINS. Arrangements for use of, or access to, and payment for such facilities will be made on Client’s behalf by PINS with those who own or control them.

F. Client shall notify PINS in writing of any change in the information provided by the Client in the Order.

G. Client shall identify technical and user-services contacts (name, address, phone, e-mail, fax number) at its site for problem resolution. Client is responsible for notifying PINS of any changes in contact information.


H. Client is given permission to send any valid 10D caller ID (ANI or CLI) to the PSTN via PINS’ network. Client will not use this facility to “spoof” or otherwise send a fraudulent ANI or ANI they are not legally and contractually allowed to send. Violations of this provision may result in the immediate termination of outbound service. Client may, in some circumstances, be permitted to send international caller ID to the PSTN. As the PINS network is located in the United States, PINS can make no guarantees about the successful transmission of an international caller ID or other caller ID that is not a geographic NA10D number.

I. Client understands that the billing jurisdiction of the call is in part determined by the ANI of the call, and understands that the interstate or intrastate jurisdiction is determined by comparing the ANI and DNIS of calls on an individual basis. Calls with an international, non-geographic, or otherwise unparseable caller ID will be billed based on the jurisdiction of the customers equipment (if such equipment is located in the United States), or New York State as the final point of interconnection to the PSTN.

J. PINS, as part of it’s network and traffic planning and management may request Client provide projections of utilization. PINS may also, at its sole discretion, impose limitations, restrictions, or penalties for unusual or extreme calling patterns, such as high numbers of “short calls” , calls which are not answered, calls to numbers which are disconnected or otherwise invalid, and high call setup rates. Should PINS need to impose such, notification will be given no less than 30 days in advance of implementation.


VIII. EQUIPMENT OR SOFTWARE NOT PROVIDED BY PINS

A. PINS shall not be responsible for the installation, operation or maintenance of equipment or software not provided by PINS; nor shall PINS be responsible for the transmission or recep¬tion of information by equipment or software not provided by PINS.

B. In the event that Client uses equipment or software not provided or approved by PINS, which impairs the Client's use of Service, Client shall nonetheless be liable for payment for Service. Upon notice from PINS that the equipment or software not provided or approved by PINS is causing or is likely to cause hazard, interference or service obstruction, Client shall eliminate the likelihood of hazard, interference or service obstruction. If Client requests PINS to troubleshoot difficulties caused by equipment or soft¬ware not provided by PINS, Client shall pay PINS at its then current rates.

C. PINS shall not be responsible if any changes in Service cause equipment or software not provided by PINS to become obsolete, require modification or alteration, or otherwise affect performance of equipment or software not provided by PINS.

D. PINS reserves the right to allow or refuse the make, model and or software revision of Client-pro¬vided hardware and software to be used in connecting to the PINS Network.

E. Client is responsible for providing, operating and maintaining the necessary cabling and computer software and hardware used for the Service at their site. All local access installation and dial-up costs are the responsibility of Client. Client shall also be responsible for user/access security and network access. PINS provides no user access security with respect to any Client facilities or facilities of others. PINS will assist in net¬work security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so.


IX. RIGHTS AND OBLIGATION OF PINS

A. PINS shall install, operate and maintain Service. Service is designed to deliver the IAREANET office products and is optimized for said service.

B. PINS warrants that Service will be in good working order and will conform to IAREANET’s service specifications upon the date installed. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

C. PINS shall not be liable, either in contract or in tort, for protection from unauthorized access to or alteration, theft or destruction of Client's data files, programs, procedure or information through accident, fraudulent means or devices, or any other method.

D. PINS shall not be liable for claims or damages caused by Client's fault, negligence or failure to per¬form Client's responsibilities; claims against Client by any third party; any act or omission of any other party furnishing products or services; or installation or removal of equipment furnished by any service provider or PINS, except where caused by the gross negligence of PINS.

E. For any claim, Client's damages, if any, shall be limited to those actually proven as directly attributable to PINS. PINS will not be liable under any circumstance for any lost profits or other con¬sequential damages, even if PINS has been advised of the possibility of such damages. In no event will PINS' liability exceed the amount of fees payable under this Agreement in accordance with Article V.

F. To the maximum extent allowed by law, PINS and its affiliates and subcontractors do not warrant any connection to, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through the Service. Client is responsible for assessing its own computer and transmission network needs, and the results to be obtained therefrom. PINS makes no other warranties of any kind, whether expressed or implied, including any implied warranty of merchantability or fitness of the Service for a particular purpose. PINS assumes no responsibility for any damages suffered by Client, includ¬ing, but not limited to, loss of data from delays, non-deliveries, mis-deliveries, or Service interruptions caused by PINS’ own negligence or Client's errors and/or omissions. PINS makes no warranty with respect to any related software or hardware used or provided by PINS or company in connec¬tion with the Service. Any patent, trademark, trade secret or warranty infringements, whether actual or alleged, are the direct responsibility of the manufacturer of said hardware or software product. PINS assumes no responsibility for any actions or liabilities arising form the possession or use of these software or hardware products.

G. PINS reserves the right to take whatever actions it deems appropriate in enforcing its policies. It also reserves the right to change its policies without prior notice at any time.


X. INSURANCE

Each party shall be responsible for assessing their own need for property, casualty and liability insurance and shall obtain such insurance covering their risks as it sees fit. The parties agree not to make any claims against the other for any property loss (whether or not insured) and shall require their insurers, if any, to waive any right of subrogation against the others for any such loss.


XI. PROPRIETARY RIGHTS AND INFORMATION PROTECTION

A. Where Client utilizes Data Service containing programming or software, PINS grants to Client a non-exclusive and non-transferable license to use such programming or software during the term of this Agreement, for the sole purpose of enabling Client to use such Service.

B. Title and property rights including all intellectual property rights to Service are and shall remain with PINS or IAREANET, whether or not embedded in the programming or software.

C. Client recognizes that Service, programming and software used hereunder constitute valuable trade secrets of PINS. Client shall use its best efforts to protect and keep confidential all PINS program¬ming and software used by it and shall make no attempt to examine, copy, alter, reverse-engineer, tamper with, or otherwise misuse such Service programming and software.


XII. INDEMNITIES

A. Each party will be indemnified and saved harmless by the other party from and against all loss, liability, damage and expense, including reasonable counsel fees, caused by:

i. Negligent acts or omissions of officers, employees, agents or contractors of the other party which arise out of or are caused by the construction, installation, maintenance, presence, use or removal of systems, chan¬nels or terminal equipment or software not leased or purchased from PINS which are con¬nected or are to be connected to the PINS Network and which result in claims and demands for damages to property or for injury or death to persons including payments made under any Worker's Com¬pensations Law or under any plan for employee's disability or death benefits.

ii. Claims for libel, slander, invasion of privacy, infringement of copyright, and invasion and/or alteration of private records or data arising from any information, data or message transmitted over the network by other party and its employees or contractors.

B. Client will indemnify PINS for infringement of patents arising from the use by Client of equipment and software, apparatus and systems not leased or purchased from PINS in connection with Service.



XIII. GENERAL

A. Neither party shall assign or transfer this Agreement without the prior written consent of the other party. Such consent shall not be unreasonably withheld.

B. Neither party shall be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes or other occurrences beyond the party's control. Each party shall notify the other party in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty (60) days, the adversely affected party may cancel this Agreement for the affected Service with no further liability other than charges prorated to the date of such occurrence.

C. This Agreement may not be modified except by written amendment by the parties. No agent, employee or repre¬sentative of PINS or Client has authority to bind the parties to any representation or warranty unless such is specifically included in this Agreement or written amendments thereto.

D. All terms of this Agreement are as interpreted and applied by the laws of the State of New York. All disputes arising out of this Agreement which cannot be resolved by the Client and PINS shall be settled by binding arbitration at the office of the American Arbitration Association (AAA) in New York City. The arbitration shall be held in accordance with the commercial Arbitration Rules of the American Arbitration Association (AAA Rules). Either the Client or PINS may initiate arbitration by providing written demand for arbitration, a copy of this Agreement and the administrative fee required by the AAA Rules to the AAA at its offices in New York City. A copy of the notice shall also be provided to the other Party. The remaining cost of the arbitration, including the fees and expenses of the arbitrator, shall be shared equally by the Parties unless the arbitration award provides otherwise. Each Party shall bear the cost of preparing and presenting its case. The Arbitrator shall not be able to award, nor shall any Party be entitled to receive punitive, incidental, consequential, exemplary, reliance or special damages, including damages for lost profits. The Arbitrator’s decision shall follow the plain meaning of the relevant documents, and shall be final, binding and enforceable in a court of competent jurisdiction. The decision of the Arbitrator can be appealed only for perceived mistakes or misapplication of the law.

E. Notice to PINS under this Agreement shall be sent to:

PUBLIC INTEREST NETWORK SERVICES, INC.
50 WEST 17TH STREET – 9TH FLOOR
NEW YORK, NEW YORK 10011
PHONE: (212) 479-1700 FAX: (212) 479-1799
EMAIL: support@pins.net

F. Notice to the Client via fax and email shall be sent to the address designated on the Order.