Thru Service, Usage and License Agreement

Updated July 2020

CAUTION! THIS LICENSE APPLIES TO Thru, Inc. (“Thru”), OF, 909 LAKE CAROLYN SUITE 1500 IRVING, TEXAS 75039, Thru SOFTWARE THAT YOU (CUSTOMER) HAVE AGREED TO THE USE AND ITS LICENSE (collectively, the “Licensed Software”). BY LOGGING IN AND YOUR USE OF THE LICENSED SOFTWARE INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS LICENSE, AND YOUR AUTHORIZATION TO CONTRACTUALLY BIND THE PERSON OR ENTITY ON WHOSE BEHALF YOU HAVE DONE SO, IF ANY. IF NOT, YOU SHOULD IMMEDIATELY RETURN THE LICENSED SOFTWARE OR CEASE ITS USE AND PROVIDE THRU WRITTEN NOTICE OF TERMINATION FIFTEEN (15) BUSINESS DAYS PRIOR TO THE END OF THE TERM AS DEFINED IN THIS AGREEMENT. SUCH NOTICE SHALL BE SENT VIA REGISTERED MAIL OR ELECTRONIC MAIL TO THRU OFFICER OR billing@thruinc.com. References herein to “You”, “Your” OR “CUSTOMER” refer to both you and such person or entity in whose behalf you act, if any.

1. General. The Licensed Software consists of a software program, or a package of separate programs, all protected by copyright and other applicable intellectual property laws, regulations, and treaties. Certain Licensed Software programs (“Other Licensed Software,” as defined below) may be wholly or partially subject to other licenses, as indicated below.

2. Grant of License; Restricted Software Use Restrictions. Subject to applicable restrictions herein, including without limitation those in the Section herein entitled “Other Software Licenses,” in partial consideration for Your payment of a service fee for Licensed Software for the duration of intellectual property rights inherent in the Licensed Software, Thru hereby grants You a limited and non-exclusive license, to use the Licensed Software in conformance with this License and the Licensed Software’s accompanying documentation in written or electronic format (collectively, “Use”). The following are impermissible, whether done directly or indirectly, and/or wholly or partially: Use or resale for use in connection with actual construction, maintenance, and/or operation of any nuclear facility, aircraft, aircraft communication or aircraft ground support system, or life support system (“High Risk Use”), for which the Licensed Software is neither designed nor intended; making the Licensed Software available in any way on an application service provider basis, as a hosted and/or managed application, or as a bureau service; any attempt to derive source code to the Licensed Software, except as permitted at law; disturbance of any notices of intellectual property or other proprietary rights; and, except as to on-line documentation copied for archival purposes, any copying of documentation. Thru transfers no ownership interest in the Licensed Software. Thru may, in its sole discretion, determine which of its Thru Products to continue to make available and/or support over time. Thru and its licensors reserve all rights not expressly granted.

3. Transfer Restrictions. You may not otherwise wholly or partially transfer or assign any rights or delegate any obligations under this License.

4. Billing, Terms and Payment; Thru shall charge Customer for access and usage of Thru Managed Products and Services (the “Service(s)”) on an enterprise basis as set out in the Service Plan, Contract or Quote – this covers all persons or virtual personas who are permitted by the Customer/Affiliates to access, store, retrieve or manage content (the “User(s)”). The fees and charges are set forth in the Service Plan.
The initial term of this Agreement (“Initial Term”) commences on the Service Plan, Contract or Quote Start Date and continues through the Service Plan, Contract or Quote End Date, as set forth in the Service Plan, Contract or Quote. Thru fixes the Pricing as set forth in the Service Plan, Contract or Quote for the term of the Agreement. Unless terminated by the Customer pursuant to Section 5 prior to the end of the Initial Term, the Agreement will automatically renew at the end of the Initial Term for a period of one (1) year. Where this Agreement is renewed by the Customer (each a “Renewal Term”) and, collectively with the Initial Term (the “Term”) at the fees, charges and pricing as set forth in the Service Plan will apply with up to a five (5) percent per annum price increase for the same Services in subsequent Renewal periods.

Thru reserves the right to restrict User(s) access to the Service(s) until payment of undisputed amounts is received in full. Full payment of undisputed amounts is due in accordance with Payment Terms agreed to in the Service Plan, Contract or Quote. Customer will give written notice to Thru, (where practicable, this will be within fifteen (15) days of invoice date), of any disputed item(s) and amount(s). Written notice must include a reasonable description of the disputed item(s) and amount(s), reason for the dispute, as well as available documentation supporting Customer’s assertion that an inaccuracy in billing has occurred. Until such notice is received by Thru (which where practicable will be within fifteen (15) days of any invoice date), then all invoice charges are deemed to be correct and payable due in full. Disputed amount(s) payment(s) are due within thirty (30) days of the date of resolution.

5. Termination. This License will terminate upon the earlier of: (i) your breach of any material obligation under this License, without cure within thirty (30) days; or (ii) immediately upon notice by either party if the other party has a receiver, administrator or liquidator appointed to the whole or any substantial part of its assets or if an order is made or resolution passed for the winding up of the party, which is not revoked within seven (7) days; or (iii) you provide Thru written notice of termination fifteen (15) business days prior to the end of the term as defined in this Agreement. Such notice shall be sent via registered mail or electronic mail to Thru officer or billing@thruinc.com.
In the event this Agreement is terminated for any reason, Thru will make available Customer Data within thirty (30) days of termination if Customer so requests during such 30-day period. Customer agrees and acknowledges that Thru has no obligation to retain the Customer Data, and may delete such Customer Data, more than thirty (30) days after termination.

6. U. S. Government Users. This software was developed at private expense; if acquired for the USA government or any contractor thereto, it is acquired as “commercial computer software” subject to the provisions of this License, as specified in (a) 48 CFR 12.212 of the FAR; or, if acquired for Department of Defense units, (b) 48 CFR 227-7202 of the DoD FAR Supplement; or sections succeeding thereto. Contractor/manufacturer is Thru, LLC., of, of 909 Lake Carolyn Suite 1500, Irving Texas 75039 .

7. Export Restrictions. You hereby assure You will not export or re-export any Licensed Software in violation of any applicable laws, regulations, executive orders and the like, including without limitation USA versions of the same.

8. Governing Law. This License is governed by and interpreted under the laws of the State of Texas and The United States of America, excluding choice of law rules. The parties hereby waive any right to a trial by jury in any action to enforce or defend any matter arising from or related to this License.

9. Disclaimer of Warranty. SAVE AS EXPRESSLY SET OUT IN THIS AGREEMENT, THE LICENSED SOFTWARE IS PROVIDED WITHOUT ANY IMPLIED, OR STATUTORY WARRANTY OR CONDITION OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE.

10. Limitation of Liability, and Indemnity. IN CONNECTION WITH OR ARISING IN RELATION TO THIS AGREEMENT, THE LICENSED SOFTWARE AND/OR THIS LICENSE: (A) IN NO EVENT SHALL Thru, LLC OR LICENSORS BE LIABLE FOR: (1) ANY CLAIMS OR DAMAGES ARISING FROM ANY HIGH RISK USE; AND (2).ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM LOSS OF DATA, USE, REVENUE, SAVINGS, OR GOODWILL), EVEN IF PRE-ADVISED OF THEIR PROSPECT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY; AND (B) LIABILITY OF Thru, LLC and LICENSORS FOR ANY AND ALL CLAIMS COMBINED WILL NOT EXCEED THE AMOUNT OF ANY LICENSE FEE PAID FOR THE LICENSED SOFTWARE. THE FOREGOING APPLIES NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY CONTRACTUAL REMEDY. YOU WILL INDEMNIFY, DEFEND (WITH COUNSEL APPROVED IN WRITING IN ADVANCE BY (Thru, LLC.) and HOLD Thru, LLC HARMLESS AGAINST ANY CLAIMS FOR COST, DAMAGE, EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) AND LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY HIGH RISK USE.

11. Laws Governing Warranties and Liability. This Agreement is Governed BY THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE-OF-LAW RULES. ANY ACTIONS OR PROCEEDINGS ARISING OUT OF THIS AGREEMENT WILL BE LITIGATED EXCLUSIVELY IN THE SUPERIOR COURT OF TEXAS, DALLAS COUNTY DIVISION, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF TEXAS. The parties hereby irrevocably consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

12. Complete Agreement. This License supersedes all oral or written agreements, understandings, past courses of dealing, and/or other uttering’s on the subjects hereof.