Internet Services This Terms of Service for Internet Services Agreement ("Agreement") provides the terms and conditions by which Birch Internet Services, Inc. ("Birch") will provide Internet and data services to Customers who execute a Birch Request for Service. Use of Birch Services constitutes Customer’s acceptance and agreement to the terms and conditions herein.

1.0 Internet Services. Birch will provide Internet and data services as selected by Customer on the Birch Request for Service form and a Birch Internet Product Agreement or Master Services Agreement, subject to availability (the "Services"). Birch will provide the Services to Customer (and, where applicable, its end users), subject to conditions generally beyond the control of Birch, including, but not limited to, the type and condition of Customer’s equipment and facilities and Force Majeure events. Any end users of Customer must use the Services in accordance with the terms of this Agreement. Services may be terminated upon notice to Customer should Birch determine to cease providing the Service in a given market as part of a change in business planning.

2.0 Term. This Agreement shall remain in effect for the term indicated in the Request for Service, Internet Product Agreement, or Master Services Agreement, unless terminated earlier as provided in this Agreement or the Internet Product Agreement. If no term is stated, this Agreement shall continue on a month-to-month basis until terminated by a party on thirty (30) days written notice. For web hosting and dial-up account customers who have paid annual rates, no portion of any annual fee paid will be refunded if Customer terminates service for any reason prior to the end of the annual service period.

2.1 Term Commitment Additional Terms. Additional terms and conditions describing termination liability, installation costs and Service Level Commitment terms may apply if Customer has chosen to purchase Services on a term commitment basis. Such terms and conditions, if applicable, will be included in a separate Internet Product Agreement or Master Services Agreement, which shall also incorporate all terms and conditions stated herein.

2.2 Termination. Except as otherwise provided in an Internet Product Agreement or Master Services Agreement, Birch may terminate Service should the Service, or any portion thereof, become, or in Birch's opinion be likely to become, the subject of a claim of infringement of a patent, trade secret, copyright, or other proprietary right. Upon termination of this Agreement for any reason, any and all software licenses and rights to use the software granted (if any) shall terminate immediately. Customer will discontinue all use of the Service and, unless otherwise instructed by Birch, within thirty (30) days after such expiration or termination, Customer will destroy all Birch-provided software in its or its end users' possession. Notwithstanding any other term or condition, Birch reserves the right to discontinue providing Services in any market at any time to any month-to-month Customer or Customer on a term plan. In such event, Customer shall only be responsible for payment up to the termination date included in a notice provided by Birch to Customer. The rights and obligations in this Agreement, which by their nature should survive termination, will remain in effect after such termination or expiration.

3.0 Maintenance. Services may be temporarily unavailable or limited because of capacity limitations and may be temporarily interrupted because of equipment modifications, upgrades, relocations, repairs, and similar activities. Customer acknowledges that from time to time Birch may perform certain network and equipment maintenance and during these times Customer service may be interrupted. To minimize impact to Customers scheduled maintenance will be performed during the non-peak hours of 11 pm to 5 am. Birch operates and maintains service only up to the Customer demarcation point. Birch is not responsible for any network elements beyond the Customer demarcation point.

3.1 Outage Notification. Occasionally it may be necessary to perform network maintenance. If a maintenance event will cause customer service to be interrupted or unavailable Birch will make commercially reasonable efforts to notify affected customers prior to the interruption, but may interrupt Customer's service without any compensation or notice to Customer if required. Birch may exercise discretion in choosing the notification method and in determining if notification is needed. When notification is appropriate Birch will identify by market where scheduled maintenance will occur. Customers can access this page at http://www.birch.com/maintenance.

4.0 Customer Premise Equipment and Software. All customers wishing to use DHCP must provide Birch with an IP range that they will be using. If the router fails and the host IP is lost any LAN function based upon that IP would be lost.

4.1 Birch-Owned CPE. All Customer Premise Equipment ("CPE") installed by Birch to provide Services to Customer shall remain the sole property of Birch, unless separately purchased by Customer. Customer shall return all CPE to Birch within ten (10) days of termination of Service for any reason. Equipment returned after ten (10) days will not be credited toward Customer’s account and Customer will be responsible for full replacement costs. Customer shall be responsible for ensuring that no liens attach to such CPE, and shall immediately cause any such liens to be removed at its expense upon request.

4.2 Customer-Provided CPE. Customer shall be responsible for the proper installation, operation and maintenance of any Customer-Provided CPE used in connection with the Services. Customer shall ensure that such Customer-Provided CPE is technically and operationally compatible with the Services and in compliance with applicable laws and regulations. All Customer-Provided CPE utilized by Customer that will be connected with Birch’s network or Services must be pre-approved by Birch. Customer may only use Birch-approved routers. No workstation configuration will be completed by Birch if Customer provides its own router; Customer shall be responsible for connection and configuration of Customer-provided routers.

4.3 Software. Subject to the terms and conditions of this Agreement, Birch grants to Customer a limited, non-exclusive, non-transferable license to use software provided by Birch on behalf of itself or a third party vendor, in conjunction with the Services, for the term of this Agreement. Prior to use, all Customer end users must agree to an End User License Agreement. Customer may not reverse engineer, decompile, disassemble, modify, or create derivative works from the software, in whole or in part. Customer may not sublicense, transfer, sell, assign, pledge, or otherwise dispose of any Service element provided hereunder without Birch’s prior written permission, or allow any liens or other legal claims to be made against the Service as a result of Customer’s use. Birch and its third party vendors retain ownership of the Service, including all patents, copyrights, and other intellectual property rights. Customer agrees that: (a) no license, right, or interest in any trademark, trade name, or service mark of Birch or its third party vendors is granted under this Agreement; (b) Customer is not permitted to and shall not remove or destroy any of the Service’s proprietary, trademark or copyright legends or markings; and (c) all existing and future copyright, patent, trademark, or other intellectual property rights arising out of or related to the Service shall remain solely the property of Birch and its third party vendors. Customer acknowledges and agrees that Birch and its software vendors have proprietary rights with respect to the Services, protected under copyright and applicable laws. Redistribution of any third party software to Customer is subject to the terms and conditions of the applicable third party license agreements. Birch’s third party provided software products are “commercial items” as defined in FAR 2.101(a) and have been developed entirely at private expense. Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be in accordance with FAR 52.227-19(c) or other agency data rights provisions, as may be applicable. Use, duplication, and disclosure by U.S. Department of Defense agencies is subject solely to the terms of the standard software EULA, as stated in DFARS 227.7202.

4.4 Software Distribution. The Service may include the ability to distribute software to employee or family member end users, allowing Customer to use the Service to distribute software to its end users. Except for the software, Customer agrees and acknowledges that it is responsible for any appropriate licensing requirements for distributing software to its end users, and agrees to indemnify, defend, and hold harmless Birch for any claims for the infringement of intellectual property rights, regardless of theory (e.g., direct, contributory, vicarious), due to Customer’s use of the Service to distribute software to such end users. Should Birch provide Customer with software updates, such updates will be provided subject to the terms and conditions of this Agreement.

5.0 Fees and Invoicing. Customer shall pay Birch all monthly fees and any additional fees and charges in connection with the Services, applicable to the Services specified in the Request for Service, Internet Product Agreement, or Master Services Agreement. Fees and charges include, but shall not be limited to, a one-time installation charge, LEC installation charges, monthly line charges, line recovery charges, taxes, assessments, surcharges, CPE charges, any fees paid by Birch on Customer’s behalf to register and maintain domain names for Customer, and beginning July 1, 2004, line recovery charges will apply to Customers subscribing to DSL Service in certain regions. Customer will be billed for any service calls that are determined to be a result of a problem not resulting from a Birch Network Outage, such as any issue caused by any element of Customer’s systems and networks. Customer will be billed Birch’s then-current standard rate, with a one-hour minimum per call. Commencing on the Installation Date (the date the Service is installed and available for Customer’s use), Customer will be invoiced monthly by Birch and shall make payment to Birch within twenty one (21) days of the invoice date. If Birch does not receive payment in full for each invoice within twenty one (21) days of the invoice date, Birch reserves the right to charge an additional one and one-half percent (1.5%), or highest amount allowed by law, per-month late charge which will be due and payable and billed to Customer’s account.

6.0 Acceptable Use Policy. Customer acknowledges that Customer has read and agrees to comply with, Birch’s Acceptable Use Policy, incorporated herein by this reference, and located here , as updated from time-to-time.

7.0 Customer Default. If Birch receives notice from a third party, or if Birch reasonably believes that a Customer or its end users has violated any of the terms of this Agreement (including, but not limited to, any failure to pay for Service when due), or if the integrity of its network would be in jeopardy if Services continue to be provided to Customer, then Birch shall have the right, in its sole discretion, without prior notification to Customer or its end users, to temporarily discontinue furnishing Service to Customer or its end users, in whole or in part, or to terminate this Agreement, without limiting any other rights or remedies Birch may have and without incurring any liability or obligation to Customer or its end users. Any of the foregoing shall constitute a default. Any suspension of Service may continue, in Birch’s discretion, until such default is cured or risk of harm is eliminated. If Birch allows Customer to restore Service, Customer shall pay a restoral charge of $25 per circuit suspended prior to any such restoral, and any charges incurred by Birch with third parties to restore Service, if any.

8.0 Warranty Disclaimer. BIRCH DOES NOT MAKE ANY REPRESENTATION OR WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, REGARDING THE SERVICES, OR ANY SERVICES OR PRODUCTS PROVIDED IN CONNECTION THEREWITH (SUCH AS CPE PRODUCTS), INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, USAGE OR TRADE. BIRCH EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE INTERNET SERVICES OR EQUIPMENT WILL BE ERROR FREE, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY BIRCH, ITS EMPLOYEES, LICENSORS OR THE LIKE SHALL CREATE A WARRANTY; NOR SHALL CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE.

9.0 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BIRCH OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SERVICES OR ANY SERVICES OR PRODUCTS PROVIDED IN CONNECTION THEREWITH, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES OR LOST PROFITS, OR DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BIRCH’S RECORDS, PROGRAMS OR SERVICES, EVEN IF BIRCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, Birch’s liability is limited to the greatest extent permitted by law. IN NO EVENT SHALL BIRCH’S LIABILITY TO CUSTOMER EXCEED ONE MONTH OF SERVICE CHARGES FOR MONTH-TO-MONTH CUSTOMERS OR APPLICABLE OUTAGE CREDITS IF CUSTOMER HAS SELECTED A 12-MONTH OR 24-MONTH TERM COMMITMENT AS SPECIFIED IN A SEPARATE BIRCH INTERNET PRODUCT AGREEMENT OR MASTER SERVICES AGREEMENT.

10.0 General Terms.

10.1 Dispute Resolution. This Section applies to any dispute, controversy, or claim, whether based in contract, tort, equity, statute or any other legal theory, between the Customer and Birch arising out of, or relating to, any service, product, facilities, charge, advertising, representation, act or omission of Birch, or any other dispute, controversy, or claim arising from the relationship between the parties that either the Customer or Birch has against the other, regardless of the date of accrual and even if the dispute, controversy, or claim arises after service has terminated (hereinafter collectively referred to herein as "Dispute" or "Disputes"). All Disputes must be resolved as described in this section. BY ORDERING AND/OR CONTINUING SERVICES PROVIDED IN THIS AGREEMENT, THE CUSTOMER AGREES THAT ANY DISPUTE WILL BE RESOLVED BY THE DISPUTE RESOLUTION PROCESS DESCRIBED HEREIN AND NOT BY A JUDGE OR JURY IN COURT. If the Customer has a Dispute with Birch, the Customer must first call Birch's Customer Service department, at the number listed on the Customer's invoice, to attempt to resolve the Dispute. The Customer must describe the Dispute and provide Birch with any supporting documentation reasonably requested by Birch. Likewise, if Birch has a Dispute with the Customer it will notify the Customer by letter sent to the Customer's billing address and attempt to resolve it before pursuing arbitration. If the parties are unable to resolve the Dispute within 60 days of the initial notice, either party may request arbitration as described below. MANDATORY ARBITRATION OF DISPUTES. ANY DISPUTE OF ANY KIND BETWEEN THE CUSTOMER AND BIRCH OR ANY EMPLOYEE, AGENT, OR AFFILIATED ENTITY OF EITHER PARTY AND/OR ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES OR OTHER REPRESENTATIVES WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION AS PRESCRIBED IN THIS SECTION. THE FEDERAL ARBITRATION ACT, NOT STATE LAW, GOVERNS THIS PROCESS, INCLUDING THE ARBITRABILITY OF ANY DISPUTE UNDER THIS AGREEMENT AND THE REVIEW OF ANY AWARD. The arbitration will be conducted by and under the then-applicable commercial arbitration rules of the American Arbitration Association ("AAA") at the nearest AAA Case Management Center or other location as agreed upon by Customer and Birch. A single neutral arbitrator engaged in the practice of law will conduct the arbitration. The arbitrator will be selected according to the rules of the American Arbitration Association or, alternatively, may be selected by agreement of the parties, who will cooperate in good faith to select the arbitrator. All expedited procedures prescribed by the applicable rules will apply. All required fees and costs will be paid equally by the parties as set forth in the AAA commercial arbitration rules. The arbitrator's decision and award will be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court with jurisdiction. No Dispute may be joined with another lawsuit, claim, dispute, or arbitration brought by any other person or resolved on a class-wide basis. The arbitrator may not award damages that are barred by this Agreement and may not award punitive damages. If any party files a judicial or administrative action to resolve a Dispute without first complying with the provisions of this Section and another party successfully stays such action or compels arbitration, the party filing that judicial or administrative action must pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including attorney's fees.

10.2 Force Majeure. Neither party shall be liable in any amount for failure to perform any obligation under this Agreement (an event of "Force Majeure") if such failure is caused by any occurrence beyond the reasonable control of such party including, without limitation, fire, flood, war, strikes, cable cuts, explosions, acts of third parties, or acts of God.

10.3 Assignment. This Agreement and any rights granted by it may not be assigned by Customer without the prior written consent of Birch.

10.4 Severability. If any portion of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect.

10.5 Waiver. The failure of either party to enforce at any time, or for any period of time, the provisions herein shall not be construed to be a waiver of such provisions or of the right of such party to enforce each and every such provision.

10.6 Entire Agreement and Amendments. This Agreement, the Request for Service, the Internet Product Agreement, and Master Services Agreement, as applicable, and the Acceptable Use Policy set forth the entire agreement of the parties with respect to the subject matter contained herein, and supersedes any and all prior agreements of the parties with respect to such subject matter. Birch may modify and amend the terms of this Agreement at any time. Customer shall be deemed to have accepted such terms by using Service at any time following posting of such modification or amendment. If any term of this Agreement violates any legal or regulatory requirement, Birch may immediately modify this Agreement to come into compliance with such law or regulation, or terminate this Agreement, in its sole discretion.