Skyway Networks - Web site hosting, co-location, and web site development services Master Service Agreement
 


Version 1.4
Last Revised On: 7/6/07

Please read these terms of service carefully as it describes your legal rights and obligations.

1. Order, Service, and Account Contacts

1.1 When you submit an Order to Skyway Networks, or access Services provided to you by Skyway Networks, an Agreement is created between you and Skyway Networks, which shall be effective based on the date your Order is received by Skyway Networks, or upon the date Services are made available to you, whichever occurs first. Your Order is incorporated herein by this reference.

1.2 You agree to provide the required information, or make the requested changes necessary for Skyway Networks to provide the Services specified in your Order. Following Skyway Networks' initial notification to you of the required information or requested changes needed to provide the Services specified in your Order, Skyway Networks will not be responsible for delays, increased costs, or expenses associated with your failure to provide the required information or make the requested changes.

1.3 As soon as commercially reasonable, Skyway Networks will provide, and you will purchase and pay for, the Services specified in the Order for the Service Fees applicable to the Skyway Networks advertised Services if the following conditions are met: (i) you have provided all of the required information and all of the requested changes, as described in section 1.2 (ii) and you are not in breach of any provision of this Agreement. In the case of a written offer by Skyway Networks provided to you, the Service Fees specified in the written offer shall override the advertised Service Fees.

1.4 At its sole discretion, Skyway Networks may require a Deposit from you for all or any portion of the Services specified in your Order, prior to the provisioning of said Services to you. This Deposit shall be fully refundable to you, as described in section 3.12, in the event you elect to cancel the Services for which the Deposit was made prior to the provisioning of said Services to you by Skyway Networks, or in the event you fail to provide the required information or make the requested changes necessary for Skyway Networks to provide the Services for which the Deposit was required.

1.5 You will provide Skyway Networks with valid contact information for yourself (the Primary Account Contact), one (1) Billing Account Contact, and at least one (1) Technical Account Contact. You may optionally elect to make one (1) individual all three (3) contacts, or any combination thereof. For each account contact described in this section 1.5, the information shall, at a minimum, include first and last name, email address, day and night phone numbers, and a complete mailing address suitable for sending mailed billing information or notices.

1.6 If at any time the required contact information described in section 1.5 for the Primary Account Contact, Billing Account Contact, or a Technical Account Contact changes, Skyway Networks must be provided with verbal or written notice of the change, received either electronically or by postal mail, within three (3) Business Days.

1.7 The Primary Account Contact shall have authority over the Billing Account Contact and any Technical Account Contacts and can submit any Order addition, change, or termination request to Skyway Networks, as provided within this Agreement. The Primary Account Contact may optionally assign a successor Primary Account Contact by informing Skyway Networks of such change in writing, received either electronically or by postal mail. If the Primary Account Contact becomes unreachable by Skyway Networks using commercially reasonable means for more than three (3) Business Days, a new Primary Account Contact can be designated by either the Billing Account Contact or any of the Technical Account Contacts, and in the case of conflicting instructions, in the order of account contact precedence stated in this section 1.7. In the event of an assignment of a new Primary Account Contact by either the current Primary Account Contact, the Billing Account Contact, or any of the Technical Account Contacts, the assigned successor Primary Account Contact agrees to assume all responsibility of your account and related Services, in addition to all legal obligations and rights described herein. The designation of a new Primary Account Contact will not be considered complete until Skyway Networks provides a written electronic confirmation to either the replaced Primary Account Contact (if reachable under the terms described in this section 1.7) or the Billing Account Contact, or at least one of the Technical Account Contacts that the specified successor Primary Account Contact has been assigned. If the Primary Account Contact, Billing Account Contact, and all of the Technical Account Contacts are unreachable by Skyway Networks using commercially reasonably means for more than three (3) Business Days, Skyway Networks may, at its sole discretion, terminate all of your Services and this Agreement and pursue remedies described herein.

1.8 The Billing Account Contact shall have authority to request and make billing-related inquiries to Skyway Networks regarding your account or to make changes to the Billing Account Contact information, as described in section 1.5, or the payment method for Services in your Order.

1.9 The Technical Account Contacts shall have authority to request and make technical-related configuration changes to any Services specified in your Order or to request information related to any Services specified in your Order, such as, but not limited to, login information. Each Technical Account Contact may also make changes to their individual contact information, as described in section 1.5.

1.10 In the event you direct Your Users to contact Skyway Networks for account information, such as Service setup or login information, Skyway Networks will require Your Users to provide, as verification, the first and last name of the Primary Account Contact, the account number, and the complete billing address. Individuals requesting account information who cannot provide the required verification information described in this section 1.10, or who raise reasonable suspicion as to their identity and authorization to receive the requested information, at Skyway Networks' sole discretion, will be directed to submit their request to the Primary Account Contact or one of the Technical Account Contacts for assistance. For Your Users who can provide the required verification information described in this section 1.10, Skyway Networks may provide Your Users with Service setup information applicable to their particular needs, or allow changing their specific Service passwords, if applicable. In the event Your Users request their passwords reset, it is solely the responsibility of Your Users to communicate a password change to the Primary Account Contact, Billing Account Contact, or one of the Technical Account Contacts, as may be required by your internal organization's policy.

1.11 Skyway Networks reserves the right to, at any time, require a Primary Account Contact, Billing Account Contact, or Technical Account Contact to provide verification of their identity and authorization in the form of providing the first and last name of the Primary Account Contact, the account number, and the complete billing address.


2. Fees, Taxes, and Payment

2.1 Upon the expiration of the initial term of the provided Services, Skyway Networks may increase or decrease the Service Fees on the renewal date of the affected Services by providing thirty (30) days prior written notice, either electronically or by postal mail, thereof to you.

2.2 The Service Fees, Deposits and related charges do not include any applicable taxes, including, but not limited to sales, use, revenue, or excise taxes imposed by a taxing authority (excluding any tax on Skyway Networks' net income) pertaining to the Services provided hereunder. All such applicable taxes will be added to your invoices, for the Service Fees, Deposits, and related charges due, as separate charges to be paid by you, unless you provide satisfactory evidence to Skyway Networks of your exemption from the applicable tax.

2.3 Unless otherwise indicated on an invoice, invoices for Service Fees, Deposits, applicable taxes, and related charges shall be due payable in United States of America Dollars within thirty (30) days after the date of the invoice. All fees are fully earned when due. Recurring Service Fees, with one (1) calendar month terms, will be billed monthly in advance on or around the first week of each month. Non-recurring Service Fees, including, but not limited to, bandwidth usage Service Fees, will be billed monthly in arrears unless provided otherwise in an addendum Service-Specific Agreement or Customer-Specific Agreement. If any invoice is not paid in full by the due date of the invoice, any amounts payable to Skyway Networks will bear interest at a rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, if it is less than 1.5%. If Skyway Networks collects any payment due at law, through an attorney at law, under advice therefrom, or through a collection agency, or if Skyway Networks prevails in any action to which you and Skyway Networks are parties, you will pay all costs of collection, arbitration, and litigation. Without limitation, this includes all court costs and Skyway Networks' reasonable attorneys' fees. Invoices that are not disputed in writing by you within 180 days of the invoice date are conclusively deemed accurate.

2.4 If your check or E-check payment is returned for insufficient funds, or is otherwise un-payable for any reason, Skyway Networks will assess a twenty five dollar ($25.00) processing charge, or the maximum amount permitted by law, if less than twenty five dollars ($25.00). If two (2) or more check or E-check payments are returned within a six (6) month period, Skyway Networks, at its sole discretion, may require an alternative payment method for all future payments such as, but not limited to a credit card, cashier's check, money order, or wire transfer.

2.5 You may request in writing, either electronically or by postal mail, that Skyway Networks automatically bill your credit card or checking account for recurring Service Fees, applicable taxes, and related charges. You agree that your permission for automatic billing will remain in effect until Skyway Networks receives written notification, either electronically or by postal mail, to cease automatic billing, or if you terminate all Services and this Agreement. Upon your notification, Skyway Networks agrees to promptly cease automatic billing of your credit card or checking account. If an automatic credit card or checking account transaction is declined, you agree to remedy the cause of the declined transaction within five (5) Business Days of electronic written notice by Skyway Networks, or to provide an alternate, acceptable form of payment.

2.6 All mailed checks sent to Skyway Networks will be addressed either to the Skyway Networks post office mailbox of PO Box 3075, Olathe, KS, 66063-1075, United States of America, or sent to the Skyway Networks offices at 8500 W 110th St Ste 500, Overland Park, KS, 66210-1804, United States of America.

2.7 If you provide a credit card for payment of Service Fees, Deposits, applicable taxes, or related charges, Skyway Networks requires, at a minimum, the credit card number, the credit card expiration month and year, the complete name appearing on the credit card, the credit card security code, and the complete billing address associated with the credit card. In the event verification of any of the credit card information fails against your credit card issuer, Skyway Networks reserves the right, at its sole discretion, to refuse acceptance of the presented credit card in favor of accepting another form of payment, such as an E-check, mailed check, cashier's check, money order, or wire transfer.

2.8 E-checks will only be accepted when drawn from a United States of America based bank. If you provide an E-check for payment of Service Fees, Skyway Networks requires, at a minimum, the complete bank name, the bank routing number, the bank account number, and the complete name associated with the checking account. In the event the E-Check transaction is not accepted by your bank, due to invalid account information, Skyway Networks reserves the right, at its sole discretion, to refuse acceptance of the presented E-Check in favor of accepting another form of payment, such as a credit card, mailed check, cashier's check, money order, or a wire transfer. If your E-Check transaction is accepted by your bank, but later returned as un-payable, a processing charge described in section 2.4 will be applied.

2.9 For any form of payment presented to Skyway Networks for payment of Service Fees, Deposits, applicable taxes, or other related charges, you represent and warrant that you have the legal right to authorize charges using the presented form of payment. In the event you misrepresent your legal right to authorize charges for the presented form of payment, Skyway Networks may, without limit, assess you with any penalties, fines, or other damages incurred by Skyway Networks for the unauthorized processing of the presented form of payment. You further agree to indemnify Skyway Networks against actions brought by any Person for the processing of an unauthorized payment as provided in section 12.


3. Term, Renewals, Suspension, Termination, and Account Credits

3.1 The initial term for Services begins with the Service Commencement Date and continues for the period stated in your Order. Upon the expiration of the initial term for Services stated in your Order, we may offer you the option of renewing your Services and this Agreement for additional successive terms having a fixed number of months. If you do not renew the Services and this Agreement for a fixed term, it will automatically renew for successive one (1) calendar month terms (excluding the renewable Services described in section 3.2), unless (i) you or Skyway Networks provide notice, electronically or by postal mail, to the other of non-renewal prior to the expiration of the then-current term; (ii) the cumulative Service Fees that would be due for one (1) calendar month are below the Minimum Billing Threshold. If below the Minimum Billing Threshold, the Services and this Agreement will be automatically renewed for a term necessary to meet the Minimum Billing Threshold.

3.2 Domain name and SSL certificate Services specified in your Order shall be subject to optional, successive renewals of twelve (12) calendar month terms at your sole discretion. Services listed in this section 3.2, will not automatically renew unless Skyway Networks receives an Order from you for the renewal of said Services. For domain name or SSL certificate Services initially registered and maintained with Skyway Networks, or fully transferred by you to Skyway Networks from a third-party service provider, and if you are not in breach of this Agreement, Skyway Networks will make a commercially reasonably effort to electronically send you one or more renewal notifications before or on the expiration date of your domain name or SSL certificate Services. Lack of receipt of a renewal notification by you shall not incur liability of any kind for Skyway Networks.

3.3 Upon automatic renewal of a Service term, Skyway Networks will electronically send, or send postal mail, to you either an invoice or a receipt (if you elect to use automatic billing as described in section 2.5) for the Service Fees, applicable taxes and related charges due for the renewal of the Services in your Order. Any delay by Skyway Networks to send an invoice or receipt shall not be interpreted as a waiver of the applicable Service Fees, applicable taxes, or related charges for any part of the renewed Services term. If you wish to decline the automatic renewal of the Services, you may do so as provided within this Agreement. In such an event, Skyway Networks will instead send to you a pro-rated invoice or receipt for Services provided between the expiration date of the prior Services term and the then-current date of your notification of declined renewal. If payment has already been provided to Skyway Networks for the renewal of Services in your Order, Skyway Networks will credit your account, within thirty (30) days of your request, for the term between the date of your notification of the declined renewal and the end of the renewed Service term. The credit will be provided as described in section 3.12.

3.4 Services provided under this Agreement may be immediately terminated upon one of the following events: (i) following a Service suspension, as described in section 3.5, you fail to pay any amounts due when required, as provided within this Agreement; (ii) Skyway Networks materially fails to provide the Services as agreed and does not remedy that failure within ten (10) days of your written notice, electronically or by postal mail, thereof to Skyway Networks describing the failure; (iii) either party breaches any material term or provision of this Agreement (other than a breach of section 3.4.i or section 3.4.ii), and if capable of cure, such breach remains uncured thirty (30) days after the non-breaching party gives written notice, electronically or by postal mail, thereof to the breaching party; (iv) either party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appointment of, any trustee or receiver for all or any portion of such party's assets; (v) Skyway Networks discovers that the information you provided for the Primary Account Contact, Billing Account Contact, or any of the Technical Account Contacts was intentionally inaccurate or incomplete; (vi) you violate the Acceptable Use Policy more than once even if you cure each violation.

3.5 In the event any Services are suspended by Skyway Networks due to your failure to pay any amounts due when required, Skyway Networks will maintain your Services in a suspended state for up to ten (10) days from the date Skyway Networks sends written notice to your Billing Account Contact, until any amounts due, including interest (described in section 2.3), and a service reactivation fee of fifteen dollars ($15.00) is paid in full to Skyway Networks. Suspension of any of your Services shall not be interpreted as a waiver of any Service Fees, applicable taxes, or other related charges that would normally be incurred by you, if the suspended Service period had not occurred. While any of your Services are in a suspended status, and at its sole discretion, Skyway Networks may redirect one or more of the domain names associated with your suspended Service to either a web site that explains the Service is currently unavailable, or to the Skyway Networks Web Site. For suspended Services that include email, inbound email delivery during the suspended Service period will be allowed, however access to those messages or to outbound email delivery services will not be allowed. Upon Skyway Networks' confirmation of your payment in full for the amount due, interest, and the service reactivation fee, Skyway Networks will promptly reactivate the suspended Service. Skyway Networks is not responsible for any delay in the availability of suspended Services on the Internet due to technical considerations beyond its control, including but not limited to, DNS propagation or caching.

3.6 You agree that Skyway Networks may suspend Services without liability if (i) we reasonably believe that the Services are being used in violation of this Agreement or (ii) you don't cooperate with our reasonable investigation of any suspected violation of this Agreement or (iii) there is an attack on your server(s), or your server(s) are accessed or manipulated by a third-party without your consent, or there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Skyway Networks' network or other Skyway Networks' customers or (iv) it is required by law. Skyway Networks will provide you with written electronic notice at least twelve (12) Business Hours prior to the suspension of Services for any of the reasons provided in this section 3.6, unless Skyway Networks reasonably believes that an immediate suspension of Services are necessary to protect the Skyway Networks' network or other Skyway Networks' customers from immediate and significant operational or security harm. In the case of an immediate suspension, Skyway Networks will attempt to contact you as soon as is reasonable to notify you of the suspension and its reason.

3.7 At its sole discretion, Skyway Networks may terminate any Services provided under this Agreement if the Services provided to you become impractical or unfeasible for any technical, legal, or regulatory reason, or are prohibited by applicable law, by giving you as much prior notice, by electronic or postal mail notification, as is commercially reasonable.

3.8 If Skyway Networks terminates Services as provided under sections 3.7 or 13.3, Skyway Networks will refund to you the pro-rated amounts of any Pre-Paid Service Fees, Service Fees, Deposits, applicable taxes, and related charges for Services not yet rendered, within thirty (30) days of the date of termination of the affected Services as described in section 3.12. You shall accept the refund as your sole and exclusive remedy for Skyway Networks' breach of your Order.

3.9 Upon terminating this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herin. Sections 3.9, 4, 9, 11, 12, 13, and 14 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and notwithstanding the expiration or termination of this Agreement, the parties shall remain liable to each other for indebtedness or other liability theretofore arising under this Agreement. In the event of your breach of this Agreement, Skyway Networks may apply, without limiting its rights or remedies described herein, any pro-rated amounts of any Pre-Paid Service Fees, Service Fees, Deposits, applicable taxes, or related charges for Services not yet rendered to you by Skyway Networks, toward any other legal or equitable rights or remedies to which Skyway Networks may be entitled.

3.10 If you terminate any Services for convenience, and you are not in breach of this Agreement at the time of the notice for Service termination, based on the date the termination notice is received by Skyway Networks, either by electronic or by postal mail, you will receive a pro-rated refund, as described in section 3.12, of any Pre-Paid Service Fees, Service Fees, Deposits, applicable taxes, or related charges for the terminated Services not yet rendered, within thirty (30) days of the date of your termination.

3.11 In the event of Service termination by either party, Skyway Networks shall have no obligation to you to retain a copy of Your Data on Skyway Networks provided hardware, equipment, or computer storage media, including, but not limited to backup tapes, past the effective termination date of the affected Service. You are solely responsible for obtaining a backup copy of all or any portion of Your Data prior to the termination of Services.

3.12 All credits may be applied, at your option, (i) to any other Service Fees, Deposits, applicable taxes, or related charges or (ii) electronically to your credit card or checking account, such that the credit is applied toward a transaction that took place no more than fourteen (14) days earlier from the date of your credit request, to the credit card or checking account originally used for the transaction or (iii) by a mailed check sent to the mailing address of the Billing Account Contact for your account.


4. Your Representations and Warranties

You hereby represent and warrant to Skyway Networks, and agree that during the term of Services specified in your Order, that you will ensure that:

4.1 Your use, publication and display of Your Data will not infringe any copyright, patent, trademark, trade secret, or other proprietary or intellectual property right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated.

4.2 You are the owner or valid licensee of Your Data and each element thereof, and you have secured all necessary licenses, consents, permissions, waivers, and releases for the use of Your Data and each element thereof, including without limitation, all trademarks, logos, names, and likenesses contained therein, without any obligation by Skyway Networks to pay any fees, residuals, guild payments or other compensation of any kind to any Person.

4.3 You will comply with all applicable laws, rules, and regulations regarding Your Data and will use the Skyway Networks provided Services only for lawful purposes.

4.4 You have used your best efforts to ensure that Your Data is and will at all times remain free of all computer worms, viruses, Trojan horses, adware, spyware, malware, and other malicious code.

4.5 You are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a Person to whom Skyway Networks is legally prohibited to provide Services. The Skyway Networks provided Services may not be used for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical, or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to any Skyway Networks provided Services to any Person (including any natural Person) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea, or Syria or any country that is embargoed or highly restricted under United States of America export regulations.

4.6 You will not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States of America in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States of America government and any country or organization of nations within whose jurisdiction you operate or do business.


5. License to Skyway Networks

5.1 You hereby grant to Skyway Networks a royalty-free, non-exclusive, worldwide right and license during the term of each Service specified in your Order to do the following to the extent necessary in the performance of Services specified in your Order: (i) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, replicate, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink Your Data and (ii) make back-up or archival copies of Your Data.

5.2 Except for the rights expressly granted in section 5.1, Skyway Networks is not acquiring any right, title or interest in or to Your Data, all of which shall remain solely with you.


6. Additional Service Agreements

6.1 You agree to use the Services in accordance with this Agreement along with the Customer-Specific Agreements and the following Service-Specific Agreements, each of which is incorporated herein by this reference. All Service-Specific Agreements are posted on the Skyway Networks Web Site, and specifically include the: 6.2 This Agreement will be posted on the Skyway Networks Web Site, and may be amended from time-to-time by Skyway Networks, provided that such amendments to this Agreement are reasonable and within the norms of the hosting industry. Amendments to this Agreement will become effective to you upon the first of the following to occur: (i) renewal of a Skyway Networks provided Service or (ii) the submission of a new Order by you to Skyway Networks that incorporates the amendments to this Agreement by reference or (iii) thirty (30) days following Skyway Networks' commercially reasonably attempt to electronically notify you of the amendments to this Agreements. Lack of receipt of electronic notification shall not, in any way, waive or release you from any amendments to this Agreement. If an amendment to this Agreement materially and adversely affects you, you may terminate your Services and this Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the amendment became effective as to you. If you terminate your Services because we have modified this Agreement in a way that adversely affects you, Skyway Networks may decide to waive that change as to you and keep your Agreement in place for the remainder of the term for your Services.

6.3 You shall impose this Agreement on Your Users and End Users to the extent necessary to ensure their compliance.


7. Your Responsibilities

7.1 You agree to use reasonable security precautions and be responsible for maintaining the confidentiality of the login information provided by Skyway Networks to you for the purpose of accessing Skyway Networks provided Services. You are fully responsible for all activities that occur using your login information. You agree to immediately notify Skyway Networks upon discovery of unauthorized use of your login information or other breaches of security related to your login information. Skyway Networks cannot and will not be liable for any loss or damage from your failure to maintain the confidentiality of your login information, or from your delay in the disclosure to Skyway Networks of breaches of security in relation to your login information.

7.2 The performance, quality, and all other aspects of Your Data, goods, or services provided through your web site, application, or email are solely your responsibility.

7.3 You are solely responsible for providing End Users with any required disclosure or explanation of the various features, content, goods, or services described therein of your web site, application, or email. You will also provide any rules, terms, or conditions of use of your web site or application.

7.4 You are solely responsible for making back-up copies of Your Data, with the exception of the portion of Your Data that is backed up as part of a Skyway Networks provided back-up Service, if specifically included as a separate Service in your Order that you have purchased, and not as a feature of another Service within your Order. Skyway Networks is not responsible for maintaining back-up copies of Your Data for longer than the agreed data retention period. Skyway Networks highly recommends that you maintain a back-up copy of all of Your Data for the purposes of enhanced disaster recovery.

7.5 You will cooperate fully with Skyway Networks in connection with Skyway Networks' performance of the Services. You will provide any equipment or software that may be necessary for you to use the Services. Delays in your performance of your obligations under this Agreement will extend the time for Skyway Networks' performance of its obligations that depend on your performance, on a day for day basis.

7.6 You assume all responsibility for uploading, supplementing, or modifying Your Data on the Skyway Networks servers, or on your servers, in the event you have co-located your own computer equipment within the Skyway Networks data center.

7.7 If using computer equipment provided by Skyway Networks in connection with the Services specified in your Order, you are responsible for ensuring that Your Data is compatible with the hardware and software used by Skyway Networks to provide the Services. Specifications for the hardware and software will be available on the Skyway Networks Web Site. It is your responsibility to check the Skyway Networks Web Site for specification updates from time-to-time. At its sole discretion, Skyway Networks may notify any or all of your account contacts electronically when important changes will be or are made to the hardware or software specifications. Lack of receipt of electronic notification shall not, in any way, waive or release your obligation under this provision. Skyway Networks is not responsible for any damages to Your Data, Service malfunctions/interruptions, or other damages caused by any failure of Your Data to be compatible with the hardware and software used by Skyway Networks to provide Services.

7.8 In the event Skyway Networks needs to investigate a service outage or disruption, a security problem, or any suspected breach of this Agreement, you agree to cooperate fully with Skyway Networks' reasonable investigation.

7.9 You agree not to remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on any software that Skyway Networks provides to you for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile, or disassemble any software we provide to you for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) Business Days advance written notice to us, delivered electronically or by postal mail. Your use of any Microsoftâ software is governed by Microsoft's license terms that appear in the Microsoft Software Usage Agreement, posted on the Skyway Networks Web Site. If you resell any part of the Services that includes Microsoft software, you must include these Microsoft terms in a written agreement with your customers.


8. Skyway Networks' Responsibilities

8.1 Skyway Networks agrees to provide the Primary Account Contact, Billing Account Contact, Technical Account Contacts, and Your Users with customer service and technical support, via email and by phone, at no additional charge, subject to the provisions in sections 1.6 through 1.11. Both customer service and technical support shall be limited to questions or complaints directly pertaining to Services provided to you by Skyway Networks. Skyway Networks is not obligated to provide customer service or technical support for questions or complaints indirectly, or otherwise unrelated to Skyway Networks provided Services. Any advice, instructions, or suggestions offered by Skyway Networks for questions not directly pertaining to Skyway Networks provided Services is provided as-is and without warranty, which may be used solely at the recipient's own risk. In the event of repeated misuse of customer service or technical support in the form of questions or complaints not directly pertaining to Skyway Networks provided Services, or verbal or written abusiveness, Skyway Networks, at its sole discretion, may refuse to acknowledge or accept customer service or technical support requests until such time the offending behavior ends.

8.2 If you have requested that Skyway Networks provide Services specified in your Order by a particular deadline or that a particular result or outcome is desired, Skyway Networks will use commercially reasonable best efforts to perform the Services by such deadline or achieve the result you've requested. Skyway Networks' ability to perform the Services is subject to your provisioning of the required information, or making the requested changes necessary for Skyway Networks to provide the Services specified in your Order. Skyway Networks will have no liability or obligation to complete the Services by any deadline or achieve a particular outcome or result, unless otherwise stated in an attached Customer-Specific Agreement.

8.3 If you wish to convey documents or files to Skyway Networks, you should deliver to Skyway Networks a copy or duplicate of such documents or files and not the original copy, regardless of the medium on which the documents or files are conveyed. Skyway Networks will not be responsible for returning documents or files conveyed by you. Only in the specific case of documents or files that are conveyed to Skyway Networks on removable computer media, such as, but not limited to, CDs or USB drives, and at your sole option and cost, you may request that Skyway Networks ship the removable computer media back to you for a reasonable package and shipping cost as determined by Skyway Networks, or make available the removable computer media for an in-person pick-up, by appointment only, at the Skyway Networks offices. In the case of an in-person pick-up, the removable computer media must be picked up by either the Primary Account Contact, the Billing Account Contact, one of the Technical Account Contacts, or a specific Person identified at the time the pick-up appointment is requested. Skyway Networks reserves the right to request a government issued identification from any Person at the Skyway Networks offices prior to supplying the requested removable computer media. In the case of removable computer media that you have requested to have shipped, Skyway Networks will make commercially reasonable efforts to ship the removable computer media in a timely manner, with a common carrier, and in a form you specify. Skyway Networks shall not be responsible for damages, lost shipments, or for the arrival of the shipment by a particular deadline.


9. Skyway Networks Intellectual Property and Property Ownership

9.1 Skyway Networks' trademarks, tradenames, service marks, copyrights, logos, or other names and marks, and related product and service names, design marks, and slogans are the sole and exclusive property of Skyway Networks. You may not use any of the foregoing in any advertising, publicity, or in any other commercial manner without the prior written consent of Skyway Networks.

9.2 Skyway Networks shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Skyway Networks to you for the purpose of providing Services specified in your Order. Skyway Networks may, at its sole discretion, change or remove any and all such Internet protocol numbers and addresses, as may be required to carry out normal network operations. You agree to surrender the affected Internet protocol numbers or addresses in use immediately upon termination of this Agreement or if terminating a specific Service using a Skyway Networks assigned Internet protocol number or address.

9.3 Skyway Networks hereby grants to you a non-transferable, non-exclusive, royalty-free license, exercisable solely during the Service terms specified in your Orders, to use applicable Skyway Networks Technology for accessing and using the Services. You may not use the Services provided by Skyway Networks for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Skyway Networks to you any Skyway Networks Technology. All rights, titles, and interests in and to the Skyway Networks Technology shall remain solely with Skyway Networks. You agree not to directly or indirectly reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the Skyway Networks Technology.

9.4 Any comments, suggestions, ideas, feedback, answers, data, questions or the like which you send to Skyway Networks relating to the Services will be treated as being non-confidential and non-proprietary, unless you indicate in writing that such is confidential. Unless you mark it otherwise, Skyway Networks may use, disclose, or publish any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever.

9.5 You do not acquire any ownership interest in or right to possess the servers, hardware, or software we provide for your use, unless provided otherwise in writing to you by Skyway Networks in a Customer-Specific Agreement. You have no right of physical access to the servers, hardware, or software.


10. Limited Warranty

10.1 Skyway Networks extends an unconditional, money-back guarantee to you for any web site hosting, application hosting, or email hosting Service during the first thirty (30) days, beginning on the Service Commencement Date. In the event you are not satisfied with any of the Services described in this section, at any time during the initial thirty (30) day term, you must electronically notify Skyway Networks to request a refund for the unsatisfactory Service. Skyway Networks will promptly terminate the unsatisfactory Service and provide you with a credit as provided in section 3.12. You may not submit successive, repeated Orders for a given Service, then request a refund for the provisioned Service as provided within this section 10.1 in an attempt to void Service Fees that would normally apply.

10.2 Skyway Networks represents and warrants to you (i) that the Services will be performed in a manner consistent with industry standards, reasonably applicable to the performance thereof; (ii) at least at the same level of performance as provided by Skyway Networks generally to its other customers for the same Services and (iii) in compliance in all material respects with the advertised Services. You will be deemed to have accepted such Services unless you notify Skyway Networks within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Your sole and exclusive remedy, and Skyway Networks' sole obligation, for breach of the foregoing warranties shall be for Skyway Networks, at its option, to re-perform the defective Services at no cost to you, or in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue you a credit, as provided in section 3.12, in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. Skyway Networks may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.

10.3 The foregoing warranties shall not apply to performance issues or defects in the Services caused by factors outside of Skyway Networks' reasonable control that results from any actions or inactions of you or any third-parties, or that resulted from your equipment or any third-party equipment not within the sole control of Skyway Networks.

10.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, SKYWAY NETWORKS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE OR HARDWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND SKYWAY NETWORKS HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO YOU HEREUNDER IS PROVIDED "AS-IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. SKYWAY NETWORKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.


11. Limitation of Liability

11.1 IN NO EVENT WILL SKYWAY NETWORKS' LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE OR HARDWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID BY YOU TO SKYWAY NETWORKS DURING THE THEN-CURRENT TERM IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR SKYWAY NETWORKS' FAILURE.

11.2 SKYWAY NETWORKS CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. SKYWAY NETWORKS WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION, OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION, OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM UNLESS THE UNAUTHORIZED ACCESS OR USE RESULTS FROM SKYWAY NETWORKS' FAILURE TO MEET ITS SECURITY OBLIGATIONS AS DESCRIBED HEREIN.

11.3 EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF USE, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES, SERVICES, OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11, 12, AND 13) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD-PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES.

11.4 Skyway Networks is not liable for the loss of Your Data unless and to the extent you purchased data back-up Services from Skyway Networks, we fail to provide the back-up Services as agreed. You agree to release Skyway Networks from liability for loss of Your Data to the extent that Your Data has changed since the time that we were last required by this Agreement to perform a back-up.

11.5 The limitations contained in this Section 11 apply to all causes of action in the aggregate, whether based in contract, tort, or any other legal theory (including strict liability), other than claims based on willful misconduct, or intentional breach of this Agreement. The limitations contained in Section 11.3 shall not apply to liability arising on account of a party's breach of Section 13 or to your indemnification obligations under Section 12. Notwithstanding anything in this Agreement to the contrary, except for claims based on Skyway Networks' willful misconduct, the maximum aggregate monetary liability of Skyway Networks and any of its employees, agents, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed six times the monthly recurring Service Fees payable under the Order in effect at the time of the occurrence of the event(s) giving rise to the claim.


12. Indemnification

12.1 If you, your affiliates, or any of your or their respective employees, agents, or suppliers is faced with a claim or suit from a third-party due to: (i) Skyway Networks' actual or alleged gross negligence, willful misconduct, violation of law, or failure to meet the security obligations required by this Agreement; (ii) Services that infringe any United States of America patent, copyright, or trademark existing on the date Services were initially provided to you, or that Skyway Networks has knowingly misappropriated any trade secret, or other intellectual property right of any other Person, including any losses, damages, or expenses arising from any such claim or suit, Skyway Networks will pay the cost of defending the claim, including reasonably attorney fees, and any damages award, fine, or other amount that is imposed on you as a result of the claim or suit.

12.2 If the Skyway Networks Indemnitees are faced with a claim or suit from a third-party due to: (i) your actual or alleged gross negligence, willful misconduct, violation of law, or failure to meet your security obligations as provided in section 4.4, (ii) your violation or breach of any representation, warranty, or covenant contained in the Agreement, (iii) Your Data, or any End User's use of Your Data, or your violation of your agreement with your End Users or Your Users, (iv) claims or actions of third-parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of your domain names, Your Data, or the use of the Services in combination with hardware, software or content not provided by Skyway Networks, (v) claims or actions by third-parties relating to or arising out of your use of the Services, and (vi) any failure of Your Data to be compatible with the hardware or software used by Skyway Networks to provide the Services, including any damage to Skyway Networks' servers or other hardware caused thereby, and (vii) disputes between Persons having a conflicting claim to control your account with Skyway Networks, then you will pay the cost of defending the claim, including reasonable attorney fees, and any damages award, fine, or other amount that is imposed on the Skyway Networks Indemnitees as a result of the claim or suit. Your obligations under this section 12 include claims arising out of acts or omissions of Your Users, or any other Person to whom you have given access to the Services, and any Person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such Persons were not authorized by you.

12.3 Promptly after either of us receives notice of threat of any claim or suit that is covered in this section 12, the receiving party will forward the notice to the financially responsible party. The party against whom the claim is made shall be allowed to choose the legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible party. The party against whom the claim or suit is made may not settle the claim without the consent of the financially responsible party, although such consent may not be unreasonably withheld. Notwithstanding anything to the contrary in this section 12, if Skyway Networks is financially responsible under this section 12 for claims against multiple customers, we may elect to choose legal counsel to defend the claims and control the defense of the claims. Amounts due under this section 12 must be paid by the financially responsible party as they are incurred by the party against whom the claim or suit is made.

12.4 If an injunction, decree, or judgment is, or Skyway Networks believes in its sole discretion is likely to be, entered providing that you may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third-party, Skyway Networks may, at its sole option and expense, either (i) procure for you the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing Services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to you.

12.5 Notwithstanding Section 12.1, Skyway Networks assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement; (ii) any modification of the Services not authorized by Skyway Networks in writing; (iii) Your Data or any content, data, or information provided or supplied by an End User; (iv) your use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFIACTION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF SKYWAY NETWORKS, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.


13. Confidentiality and Non-Solicitation

13.1 Each party will not, without the prior written consent of the other party, use or disclose to any Person, Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder subject to section 13.2. Each party will treat the Proprietary Information of the other party as secret and confidential while limiting access to the Proprietary Information of the party to: (i) those of its employees, agents, service providers, and representatives who require access to it in order to effectuate the purposes of this Agreement, provided that said Persons agree to confidentiality measures that are at least as stringent as those described in this Agreement; (ii) law enforcement or a government agency if either of us reasonably believes that the other party's conduct may violate applicable criminal law or if required by law; (iii) law enforcement or a government agency in response to a compulsory legal process or subpoena, provided that both parties agree to give the other written notice, electronically, at least seven (7) days prior to disclosing Proprietary Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice. Each party agrees not to disclose the Proprietary Information of the other party to any other Person without the written consent of the other party.

13.2 Notwithstanding section 13.1, the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third-party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

13.3 Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.

13.4 During the term of this Agreement and for two years following expiration or termination of this Agreement, you will not, directly or indirectly, solicit or recruit the services of any employee of Skyway Networks performing Services under this Agreement, while such employee is employed by Skyway Networks and for a period of six months after such employee has left the employment of Skyway Networks.


14. Miscellaneous

14.1 Independent Contractor. You and Skyway Networks are independent contractors and nothing contained in this Agreement places you and Skyway Networks in the relationship of principal and agent, master and servant, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

14.2 Governing Law and Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Kansas, except that all arbitration and related proceedings conducted pursuant to section 14.3, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 14.3 BELOW MUST BE BROUGHT IN A KANSAS STATE COURT LOCATED IN JOHNSON COUNTRY, OR FEDERAL COURT LOCATED IN KANSAS CITY, KANSAS, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. You agree that you will not bring or participate in any class action lawsuit against Skyway Networks or any of its employees or affiliates.

14.3 Mandatory Arbitration. Notwithstanding section 14.2 above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the American Arbitration Association (or such other recognized provider of arbitration services agreed upon by both parties) before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $10,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Overland Park, Kansas. Any action filed by either party in any court in violation of this section should be dismissed pursuant to this section.

14.4 Headings. The headings herein are for convenience only and are not part of this Agreement.

14.5 Entire Agreement; Amendments. This Agreement, including all documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the matters covered hereby. In case of a conflict between the terms of any documents that comprises this Agreement, the documents will govern in the following order: your Orders, any Customer-Specific Agreements, any Service-Specific Agreements, any addendums to the Master Service Agreement, the Master Service Agreement, and the Acceptable Use Policy. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by you or one of your authorized representatives and Skyway Networks. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided however, that this Agreement may be modified from time to time by Skyway Networks as provided in section 6.2.

14.6 Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid, or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

14.7 Notices. All notices and demands required or contemplated hereunder, unless otherwise specified in this Agreement, shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in-person or by an overnight delivery or postal service, upon receipt if delivered by email or facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five (5) Business Days after the date of posting if mailed by certified mail, postage prepaid, to the address provided by the Primary Account Contact or Skyway Networks at 8500 W 110th St Ste 500, Overland Park, KS, 66210-1804, United States of America.

14.8 Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

14.9 Assignment; Successors. You may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Skyway Networks as provided in section 1.7. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Skyway Networks may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. This Agreement shall be binding upon and shall endure to the benefit of the parties hereto and their respective successors and permitted assigns.

14.10 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two (2) years after the cause of action has arisen.

14.11 Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically (such as, but not limited to, a PDF or JPG format), it shall be deemed to be the original signatures and Skyway Networks' records of such execution shall be presumed accurate unless proven otherwise.

14.12 Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation, electricity, communications, supply shortages, a significant failure of the Internet, or the failure of any third-party to perform any commitment relative to the production of delivery of any equipment or material required for such party to perform its obligations hereunder.

14.13 No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, you acknowledge and agree that Microsoft, and any third-party supplier that is identified as a third-party beneficiary in the Order, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against you as if it were a party to this Agreement.

14.14 Marketing. You agree that during the term of this Agreement, Skyway Networks may publicly refer to you, orally and in writing, and include your name in promotional materials, such as press releases, as a customer of Skyway Networks. Neither of us may publicly use the other party's trade or service marks without prior written permission.

14.15 Telephone Monitoring and Recording. To ensure Skyway Networks' customers receive quality service, Skyway Networks may randomly select phone calls for monitoring or recording. These calls, between Skyway Networks' customers and employees, are evaluated by supervisors. This is to guarantee that prompt consistent assistance and accurate information is delivered in a professional manner.

14.16 Third-party products, software, and services. From time to time, Skyway Networks may arrange for you to purchase or license third-party products, services, or software that are not included as Services, either as part of a special offer or a partner program. SKYWAY NETWORKS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD-PARTY PRODUCTS, SOFTWARE, OR SERVICES AND AS BETWEEN YOU AND SKYWAY NETWORKS, SUCH PRODUCTS, SOFTWARE, AND SERVICES ARE PROVIDED "AS-IS". Your use of third-party products, software, and services is governed by the terms of your agreement with the third-party.

14.17 Reselling. You may resell the Services specified in your Order and you may allow your subsidiaries and affiliates to use the Services if you wish, but you are responsible for use of the Services by any third-party to the same extent as if you were using the Services yourself.


15. Definitions

For purposes of this Agreement, the following terms have the meanings specified below:

"You", "you", "Your", "your", "yourself", "Primary Account Contact", and grammatical variants thereof shall mean you, any entity that has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or beneficial interest, including authorized agents or affiliates working on your behalf.

"Skyway Networks" and grammatical variants thereof shall mean Skyway Networks, LLC, a limited liability company organized and existing under the laws of the State of Kansas, United States of America, located at 8500 W 110th Street, Suite 500, Overland Park, Kansas, 66210-1804 and its assigns and successors in interest.

"Services", "Service" shall mean any commercially advertised function, work, or operation that Skyway Networks provisions and provides to you in return for financial compensation, which may be subject to supplemental Service-Specific Agreements in addition to this Agreement.

"Order", "Orders" shall mean one or more requests by you, received electronically, verbally, by phone, in writing, or in-person, by Skyway Networks for the commencement of one or more Services, provided by Skyway Networks.

"Business Days", "Business Hours" shall mean 9:00 am to 5:00 pm, Monday through Friday, United States of America central time, excluding federal public holidays in the United States of America.

"Billing Account Contact" shall mean a Person responsible for receiving invoices or receipts for Service Fees, Deposits, applicable taxes, and any related charges from Skyway Networks, as well as remitting payment to Skyway Networks.

"Technical Account Contacts", "Technical Account Contact" shall mean one or more Persons responsible for the maintenance or alteration of Service configurations, as they apply to your Order.

"Agreement" shall mean this Master Services Agreement contract, as may be amended from time to time by Skyway Networks, the Service-Specific Agreement contracts, and the Customer-Specific Agreement contracts all of which is cumulatively created between you and Skyway Networks for the Services requested within your cumulative Orders.

"Service-Specific Agreement", "Service-Specific Agreements" shall mean the cumulative contracts created between you and Skyway Networks for Services with special legal terms, as may be amended from time to time by Skyway Networks, which specifically include the: "Customer-Specific Agreement", "Customer-Specific Agreements" shall mean supplemental contracts in the form of exhibits that pertain to your specific needs on a case-by-case basis, which will only be considered effective if mutually signed by you and an authorized representative of Skyway Networks. Similarly, any changes to any exhibit shall not be effective unless said changes are signed off by both you and an authorized representative of Skyway Networks.

"Service Fees" shall mean the pricing of Services, in United States of America dollars, that you agree to pay to Skyway Networks in consideration for the Services rendered.

"Pre-Paid Service Fees" shall mean Service Fees you optionally paid to Skyway Networks, in advance of the delivery of the fully rendered Services, for which the paid Service Fees are intended. This may or may not be accompanied by a variable Service Fee discount offered by Skyway Networks to you, in consideration for Service Fees paid in advance.

"Deposit", "Deposits" shall mean a required advance payment made by you to Skyway Networks as a prerequisite for the provisioning of Services specified in your Order, with the intent to apply the full advance payment amount to the Services, once rendered to you by Skyway Networks.

"E-check", "E-checks" shall mean an auto clearing house (ACH) electronic check submitted by you to Skyway Networks for payment of Service Fees. Payments made by electronic check may be submitted either on the Skyway Networks web site (http://www.skywaynetworks.com) or verbally by phone and must be drawn on a United States of America based bank.

"Service Commencement Date" shall mean the date Skyway Networks provides to you the login information or instructions necessary to access the Services specified in your Order.

"Minimum Billing Threshold" shall mean a minimum cumulative dollar amount of Service Fees for a one (1) calendar month period that is equal to fifteen dollars ($15.00). This minimum applies solely to renewable Services and is the threshold at which Skyway Networks will bill you for Service Fees.

"Your Data" shall mean any data, databases, programming code, applications, images, videos, hyperlinks, text, names, marks, logos or other information incorporated, transmitted through, published, or displayed on your web site, email, or hosted application.

"Person", "Persons" shall mean any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, private entity, or government or any agency or political subdivision thereof.

"Skyway Networks Web Site" shall mean the publicly accessible web sites found at http://www.skywaynetworks.com and https://secure.skywaynetworks.com.

"Your Users" shall mean any Person, employee, contractor, affiliate, or agent in which you have a business relationship. This does not include the Primary Account contact, Billing Account Contact, or any of the Technical Account Contacts.

"End User", "End Users" shall mean any Person who uses or accesses Your Data via the Internet.

"Skyway Networks Technology" shall mean Skyway Networks' proprietary technology, including, without limitation, Skyway Networks' Services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets, and any related intellectual property rights throughout the world (whether owned by Skyway Networks or licensed to Skyway Networks from a third party), and also including any derivatives, improvements, enhancements, updates, modifications, or extensions of Skyway Networks Technology conceived, reduced to practice, or developed during the term of this Agreement, by either party.

"Skyway Networks Indemnitees" shall mean Skyway Networks, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns.

"Proprietary Information" shall mean technical, business, and other information of a party that is not generally known to the public, that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use. Such information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.