AIRECOMM INTEGRATED SOLUTIONS, LLC SERVICE AGREEMENT
TERMS AND CONDITIONS
 

1. AGREEMENT
   1. These terms and conditions, taken together with the AireComm Integrated Solutions Broadband Agreement Cover Sheet ("Cover Sheet") shall constitute the agreement between AireComm Integrated Solutions, LLC (AIS) and Customer ("Agreement"). This Agreement anticipates the future issuance of Work Orders by Customer for the purpose of ordering the Service Package hereunder. Upon acceptance of a Work Order by AIS, each such Work Order shall be governed by and shall be deemed incorporated into this Agreement. Acceptance of a Work Order shall be deemed to have occurred upon the acceptance of a Work Order by AIS in writing or upon the commencement of delivery of the Service Package by AIS.
   2. All capitalized terms used herein and not defined when first used, are defined in Section 17 hereunder.
   3. In the event of a conflict between the terms and conditions of this Agreement and the Cover Sheet, the Cover Sheet shall control.
   4. This agreement and all obligations stated herein are subject to the results of AIS's engineering assessment of the costs to provide the Service Package to Customer's location. Once construction costs have been calculated, AIS will inform Customer of any changes in payment requirements to obtain service. If Customer's location is determined to be outside the AIS serviceable area, AIS reserves the right to terminate this agreement. In the event that the payments required of Customer exceed the amounts stated in this Agreement or the estimated time to construct exceeds sixty-five ( 65) days, either party may terminate the Agreement by giving written notice to the other party within 15 days of receipt by Customer of the engineering assessment. AIS will make reasonable commercial efforts to complete the assessment within twenty-one (21) business days. Should the assessment period exceed 21 business days, Customer may terminate the agreement by giving written notice to AIS.
   
    
2. SERVICE PACKAGE
   1. Subject to the terms of this Agreement, Customer engages AIS to deliver the Service Package identified on the Cover Sheet, provided that such Work Order is accepted by AIS as set forth in Section 1A above. The Parties, by mutual written agreement, may add additional premium services to the Service Package from time-to-time by setting forth such services and the related payment terms and other terms and conditions (if different from those set forth herein) in additional Exhibits to this Agreement. Customer is not allowed to act as an Internet Service Provider "ISP" without the express written permission of AIS.
   2. AIS (or a AIS Affiliate) will use reasonable efforts to (i) complete any Equipment installation work as necessary to activate the Service Package ("Activation") for each Customer location, as applicable, in accordance with the relevant Work Order and (ii) provide the Broadband services included in the Service Package to Customer 7 days a week, 24 hours a day excluding scheduled maintenance and required repairs upon Activation of each Customer employee or branch office, as applicable. Notwithstanding anything herein to the contrary, AIS shall have no liability for its delay in the Activation of a Service Package for a particular Customer employee or branch office (as applicable) if such delay is the result of (i) events or circumstances beyond AIS's reasonable control; (ii) Customer's (or Customer's employee's or Customer's branch office's) failure to deliver any required materials or information to AIS, including those set forth as project assumptions in a Work Order, if any; or (iii) AIS not being able to access equipment or software, at Customer's employee or Customer's branch office, necessary for Activation. Customer shall pay AIS its standard fees for any subsequent trips necessary due to such equipment or software unavailability as described in this Section 2.B(iii).
   3. AIS shall have the right at any time to change or discontinue any aspect or feature of the Broadband Service and the Service Package, including but not limited to AireComm Broadband Content, hours of availability, Equipment and System Requirements. AIS shall have the right to add to, modify or delete any provision of this Agreement, and/or any other Terms of Use at any time. AIS will notify Customer thirty (30) days prior to any material adverse change by posting notice of such material change on the AireComm Broadband Service and/or by e-mail or postal mail. Customer agrees that any one of the foregoing methods of notice will constitute sufficient notice of such changes. Customer's continued use of the Service Package following any notice of a change will constitute Customer's acceptance of such change. If Customer does not agree to any change, Customer immediately shall stop using the Service Package and notify AIS that it is terminating the subscription to the Service Package.
   4. This Agreement shall be in effect commencing at date of installation, unless earlier terminated in accordance with this Section 2D (the "Initial Term"), business closure or relocation to a non-serviceable area. The Agreement shall automatically renew for successive monthly (1) terms ("Renewal Terms"). AIS shall have the right to increase Service Charges after the Initial Term. Either AIS or Customer may terminate this Agreement upon thirty (30) days notice of the other party's material breach, provided that such material breach is not cured within such thirty (30) day notice period. Upon the termination or expiration of this Agreement, AIS's obligations hereunder shall cease, and Customer shall promptly pay all amounts due and owing to AIS including, but not limited to, all amounts for work performed by AIS prior to termination.
   5. AIS is responsible for maintaining the AIS provided and installed devices (if any), cabling, related splitters and other service-related Equipment, which connects to the AireComm Broadband Network. As part of the Service Package, AIS will provide a telephone number and email address for inquiries and remote problem support for Service Package disruption. AIS shall provide support directly to Customer and to Customer Employees on the Service Package provided by AIS hereunder. The scope of inquiry and remote support services shall be as determined by AIS in its sole discretion from time to time. The support provided is for Customer's use of the Service Package by means of the Equipment installed by or on behalf of AIS and the Software, if any, only. In no event shall AIS be responsible for providing such support for: (a) Equipment not installed by AIS under this Agreement; or (b) any other equipment or software. AIS shall refer to Customer, for solution by Customer at Customer's sole expense, those network problems that are identified by AIS as being caused by Customer or any third party using the Service Package, including, but not limited to, such problems arising out of the Customer Data Network. All AIS Customer Support shall be provided 24 X 7.
   6. Each Party shall designate one person to serve as the primary contact for all communications hereunder. Initially, such persons shall be those listed on the Cover Sheet as such party's "Contact". Each Party shall promptly notify the other upon the replacement of such contact.
   
    
3. CHARGES / AUDIT
   1. Customer agrees to pay AIS the fees set forth in the Cover Sheet. AIS shall have the right to increase the fees set forth in Cover Sheet after the Initial Term. A $5.00 per month service charge shall be assessed on all amounts not paid within thirty (30) days of their due date. Service Charges for the Service Package will be billed monthly in advance in accordance with AIS's regular billing schedule and are payable on the due date specified in the bill. Additional fees may be payable under each Subscriber Agreement.
   2. AIS encourages all of its Customers to authorize automated electronic payments. In the event that Customer elects to receive a written invoice or to make payments at an AIS office, AIS shall add a surcharge of $3.00 to each invoice printed and mailed and to each payment received.
   3. An administrative late charge may be charged on accounts that are past due. There will only be one (1) such administrative charge for each month's charges not paid when due. Payment for the Service Package must be received by AIS on or before the due date stated on the monthly bill. Customer agrees that each individual non-payment causes AIS to suffer damages in an amount that is difficult to ascertain with certainty. AIS has made a reasonable estimate to determine the damages caused by late payments generally and has used this estimate to set a liquidated damages late fee amount. The current late fee is listed in 3.A. AIS reserves the right to change the late fee amount at any time in the future upon notice to Customer of the new amount. AIS may charge a service fee for all returned checks and bankcard and charge card chargebacks. In addition to the foregoing, and all other available remedies, AIS may: (i) discontinue Customer's access to all or portions of the Service Package in whole or in part, until such charges, together with interest, are paid; and (ii) delete the Customer Content and all other information residing on any AIS provided facility. None of the AIS Parties shall have any responsibility or liability for any discontinued access to the Service Package (or portion thereof) or information deleted pursuant to this paragraph. Notwithstanding anything set forth herein to the contrary, the Parties agree that AIS shall have the right to cancel or suspend, in AIS's sole discretion, the Service Package of an end user if such end user has payments outstanding to AIS for Broadband Service. AIS may charge a reasonable deinstallation charge for any end user account that is terminated pursuant to this Agreement.
   4. If Customer access to a Service Package is discontinued in whole or in part, and AIS agrees to resume access to the Service Package (or portion thereof), AIS may require a reconnect charge or trip charge (in addition to payment of all overdue balances) before resumption of such access. Customer will be responsible for all expenses (including reasonable attorneys' fees) incurred by AIS in collecting any amounts due and unpaid by Customer.
   5. In addition, AIS shall have the right, upon reasonable prior notice and during Customer's normal business hours, and subject to any reasonable security requirements to audit Customer's use of the Service Package, to ensure Customer's compliance with this Agreement. In the event that AIS's audit reveals that Customer's usage of the Service Package exceeds Customer's rights hereunder, Customer shall, pay AIS an amount equal to one and a half times the Service Charges that would have been due for such excessive usage as liquidated damages and not as a penalty. In addition, Customer shall either discontinue any excess usage or thereafter continue to pay AIS's then-current fees for such additional usage.
   
    
4. EQUIPMENT / SOFTWARE
   1. As between AIS and Customer, the Equipment is and at all times shall remain the sole and exclusive property of AIS, and Customer shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the Equipment to the Customers' premises or otherwise. Customer will not open, alter, misuse, tamper with or remove the Equipment as and where installed by AIS (or a AIS Affiliate), and will not remove any markings or labels from the Equipment indicating AIS (or its suppliers) ownership or serial or identity numbers. Upon termination of the Service Package, for whatever reason, Customer acknowledges that his/her right to possess and use the Equipment shall likewise terminate. In such event, the Equipment shall be returned to AIS in the same condition as when received, ordinary wear and tear excepted. The Customer will be billed by AIS for any charges relating to damages exceeding ordinary wear and tear. Customer will safeguard the Equipment from loss or damage of any kind, and (except for any self installation procedures approved by AIS) will not permit anyone other than an authorized representative of AIS to perform any work on the Equipment.
   2. AIS shall have the right to upgrade, modify, enhance and replace the Equipment and the Software, through "downloads" from the AireComm Broadband Network or otherwise. AIS may employ such means to limit the throughput available through individual equipment whether or not provided by AIS and may require Customer to conform its equipment, including, but not limited to, Antennas, Routers, and its software, including, but not limited to, its Customer Data Network, and proxy Server, to AIS's then-current network specifications and System Requirements.
   3. If the Equipment is damaged, destroyed, lost or stolen while in Customer's possession, Customer shall be liable for the cost of repair or replacement of such Equipment. If the Equipment is not returned to AIS as described in Section 4.A upon termination of the Service Package, Customer will pay AIS the amount specified in the then-current price list for the replacement cost of the Equipment without any deduction for depreciation, wear and tear or the physical condition of such Equipment. AIS may apply any security deposit to any such obligation of Customer, and collect any remaining balance from Customer. In the event any amount is deducted from the security deposit (other than upon termination of the Service Package), Customer must immediately replace the amount so deducted.
   4. If Software is provided to Customer, AIS grants to the Customer a limited, non-exclusive license to use the Software, in object code form only, solely for the purpose of connecting to the AireComm Broadband Service the number of Computers specified on the accompanying Work Order. This license will permit such use by Customer and any Customer Employee or branch office authorized to use the Service Package hereunder, under any password or screen name, provided that Customer shall be responsible for all use of the Service Package as described in Section 7. This license will commence upon acceptance of Customer's subscription for the AireComm Broadband Service and will terminate immediately upon termination of the AireComm Broadband Service to Customer for any reason. AIS and/or its licensors retain all rights and interests in and to the Software.
   5. If Software is provided to Customer, Customer is permitted to make a single copy of the Software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original Software. Customer will not engage in, and will not permit, any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited. Customer will destroy all Software and any related written material together with any copies promptly upon termination of the AireComm Broadband Service to Customer for any reason and will certify that such actions have been taken to AIS in writing.
   
    
5. CUSTOMER CONTENT / PROPRIETARY RIGHTS
   1. Customer Content. Customer assumes sole responsibility for the Customer Data Network and Customer Content. Notwithstanding the foregoing, AIS reserves the right, in its sole discretion, to exclude or remove any hypertext links to third party web sites and any Customer Content which, in AIS's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes AIS to civil or criminal liability.
   2. License /Proprietary Rights of Customer. Customer hereby grants to AIS a nonexclusive, worldwide, royalty-free license for the Term to modify, publish, reproduce, distribute, perform, and otherwise use any material posted on the public areas of the AireComm Broadband Service via Customer's Service Package, but only for purposes consistent with the operation of the AireComm Broadband Service available through use of the Service Package provided hereunder. As between Customer and AIS and without limiting AIS's rights under this Agreement, e-mail messages (if any) and Customer Content shall remain the sole and exclusive property of Customer, including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights therein
   3. Proprietary Rights of AIS. All materials, including, but not limited to, any computer software (in object code and source code form), data or information developed or provided by AIS, any identifiers or passwords used to access any portion of the Service Package or otherwise provided by AIS, and any know-how, methodologies, equipment, or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by AIS to provide the Service Package to Customer (collectively "AIS Materials") shall remain the sole and exclusive property of AIS or its suppliers. AIS's Confidential Information, as defined herein, shall be held confidential by the Customer, and in no event shall Customer disclose any such Confidential Information to any third party.
   
    
6. MAINTENANCE / REPAIRS
   1. AIS will use reasonable efforts to: repair damage to Equipment installed by AIS and AIS furnished network facilities, modify Software, and otherwise attempt to correct any disruption of the Service Package due to technical malfunction of the AireComm Broadband Network not caused by Customer or any third party using the Service Package. AIS, in its discretion, may charge to Customer its cost to perform modification or recovery of the Service Package or to repair Equipment or network facilities if AIS determines that such modification, recovery or repair was necessitated by Customer's negligent or wrongful action or failure to act.
   2. AIS may provide a minimum service credit to Customer in the event of a failure of the AireComm Broadband Network as follows: In the event of a complete failure of the Service Package hereunder due to technical malfunction of the AireComm Broadband Network operated by AIS for twenty-four (24) consecutive hours or more, Customer will be entitled to a pro-rated credit upon request, such credit equal to one-thirtieth (1/30) of the monthly recurring charges for each consecutive twenty-four (24) hour period of each such failure of such services. To qualify for an adjustment, Customer must request a credit from AIS within thirty (30) days after such failure. In no event shall credits awarded for any month of service exceed the monthly recurring charges received by AIS for such month of service.
   3. The obligation set forth in this Section 6 shall constitute AIS's sole obligation and liability and Customer's exclusive remedy in the event of any failure of the Service Package.
   4. AIS shall have no liability, including as set forth in this Section 6, for disruption of the Service Package due to circumstances beyond its control, including, but not limited to, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, unauthorized access to or destruction to or modification of the Service Package or the AireComm Broadband Network, in whole or in part, or act or failure to act by Customer or any third party using the Service Package.
   
    
7. CUSTOMER'S OBLIGATIONS / RESPONSIBILITIES
   1. CUSTOMER IS RESPONSIBLE IN ALL RESPECTS FOR ALL USE OF CUSTOMER'S SERVICE PACKAGE, INCLUDING UNDER ANY SCREEN NAME OR PASSWORD BY ANY PERSON, AND ALL USE BY OTHERS OF CUSTOMER'S SERVICE PACKAGE IS SUBJECT TO THE TERMS HEREOF. FOR THE PURPOSES OF THIS AGREEMENT, ALL USE OF THE SERVICE PACKAGE, WHETHER OR NOT AUTHORIZED BY CUSTOMER, SHALL BE DEEMED CUSTOMER'S USE. CUSTOMER SHALL BE RESPONSIBLE FOR PROTECTING THE CONFIDENTIALITY OF CUSTOMER'S PASSWORDS. CUSTOMER MAY ACCESS VIA THE AIRECOMM BROADBAND SERVICE CERTAIN CONTENT, MERCHANDISE AND SERVICES FOR WHICH THERE ARE CHARGES PAYABLE TO THIRD PARTIES (WHICH MAY INCLUDE AIS). CUSTOMER AGREES THAT ALL SUCH CHARGES WILL BE CUSTOMER'S, AND NOT AIS'S, SOLE AND EXCLUSIVE RESPONSIBILITY AND AGREES TO PAY THE SAME WHEN DUE, AND SHALL INDEMNIFY AND HOLD HARMLESS THE AIS PARTIES FOR ALL LIABILITY IN CONNECTION THEREWITH.
   2. Customer understands that the AireComm Broadband Service may provide Customer's employees with a connection to the Internet that may be unfiltered, and that the AIS Parties neither control nor assume any responsibility for any content on the Internet or that is posted by a subscriber. Customer is solely responsible for the content that is viewed by its employees, and agrees to indemnify, defend and hold AIS harmless from and against any claims, liabilities, damages and expenses, including attorney's fees, arising out of or relating to content accessed by Customer's employees through the AireComm Broadband Service.
   3. Customer shall use the AireComm Broadband Service for lawful purposes only, and in accordance with this Agreement and any Terms of Use. Customer is responsible for ensuring that Customer's Employees and branch offices that are activated under this Agreement also use the AireComm Broadband Service for a lawful purpose and in accordance with this Agreement and any Terms of Use. Customer shall ensure that each Customer Employee Activated under this Agreement enters into an end user Subscription Agreement that at a minimum: (a) protects AIS's proprietary rights in the AireComm Broadband Services to at least the same degree as the terms and conditions of this Agreement; (b) requires that such Customer Employee not reverse engineer, reverse compile or disassemble the object code for the AireComm Broadband Services; (c) requires the Customer Employee to comply fully with the Terms of Use and all applicable laws and regulations in any of its dealings with respect to the AireComm Broadband Services; (d) makes no representations or warranties on behalf of AIS or any AIS Affiliates; (e) completely limits AIS's and AIS Affiliate's liability to the extent permissible by law; and (f) does not grant any rights to such Customer Employee beyond the scope of this Agreement. Customer shall not upload, post, transmit or otherwise make available on or via the AireComm Broadband Service any material (including any message or series of messages) that violates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, obstructive, harassing, libelous, invasive of privacy or publicity rights, that in the circumstances would be obscene or indecent, that constitutes hate speech, that is otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. AIS may remove content that in its judgment violates these standards.
   4. The Service Package may contain copyrighted material, trademarks and other proprietary information, and the AireComm Broadband Content in its entirety is copyrighted as a collective work under the United States copyright laws. In such event, except where otherwise prohibited, AIS grants Customer the right to download copyrighted material posted on the AireComm Broadband Service by a AIS Party, provided such material is downloaded solely for Customer's internal business use. Except as granted herein or as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded material will be permitted without the express prior written consent of AIS and, where applicable, the third party copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution or copyright notice shall be made.
   5. Customer shall not upload, post, transmit or otherwise make available on or via the AireComm Broadband Service any material protected by copyright, trademark, patent, trade secret or other proprietary right in a manner that infringes or violates any such right. It is the policy of AIS to terminate in appropriate circumstances the AireComm Broadband Service of any subscriber or account holder who is a repeat infringer. AIS shall notify Customer if any account holder is terminated for such infringement. This policy does not affect any other rights AIS may have under law or under any agreement between AIS and Customer. AIS also reserves the right to suspend or terminate Customer's Service Package in whole or in part for a single violation of this paragraph or any other provision of this Agreement or other Terms of Use.
   6. The Customer agrees that AIS shall have the right to take any action that AIS deems appropriate to protect the AireComm Broadband Service, its facilities and the Equipment. Customer acknowledges and agrees that AIS shall have the right to monitor Customer's "bandwidth" utilization (i.e. volume of data transmitted) at any time and on an on-going basis and to limit excessive use of bandwidth by Customer (as determined by AIS from time to time) in order to effectuate these provisions and other terms hereof, and Customer acknowledges AIS's right to audit Customer's use of the Service Package in accordance with Section 3 above.
   7. In the event that Customer fails to comply with any of its obligations hereunder, AIS may suspend or discontinue the Service Package in whole or in part (including physically disconnecting the connection between the Customer premises and the AireComm Broadband Network) without advance notice. If AIS suspends Customer's use of the Service Package, Customer will not be charged for that period of suspended time. If AIS discontinues the Service Package, AIS will refund to Customer all pre-paid fees (if any) less any amount due AIS under this Agreement. Notwithstanding the foregoing, Customer will not be entitled to any refund or reduction of fees if Customer is prevented from using certain, but not all, features of the Service Package as a result of violations of this Agreement or the Terms of Use.
   8. AIS and its authorized agents may enter Customer's premises and have access to Customer's Computer(s) (and/or those computers of Customer's employees authorized to use the AireComm Broadband Services if Customer executes an Exhibit that allows such use) periodically during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace or alter the Equipment or associated hardware or the Software, or to disconnect and remove the Equipment. If Customer is not the owner of the premises upon which Equipment and Software are to be installed, Customer warrants that he/she has obtained the consent of the owner of the premises for AIS personnel and/or its agents to enter the premises for the purposes described herein.
   
    
8. WARRANTIES
   1. AIS. AIS warrants to Customer that AIS has the power and authority to enter into and perform its obligations under this Agreement.
   2. Customer. Customer warrants to AIS: that Customer has the power and authority to enter into and perform its obligations under this Agreement; the Customer Content includes only information and materials that Customer owns or is otherwise authorized to distribute and use and to authorize AIS to distribute and use as contemplated hereby, the Customer Content conforms to all applicable federal, state, and local laws and regulations, including but not limited to export laws; any existing or requested domain name Customer submits to AIS pursuant to this Agreement and all intellectual property rights therein are owned exclusively by Customer, or that Customer has all necessary rights to register such name; and neither the Customer Content, nor the exercise by AIS and its permitted sublicensees of the rights granted hereunder with respect to the Customer Content, will infringe upon or violate any copyright, trademark, patent, trade secret or other proprietary right of any third party. Should Customer receive notice of a claim regarding the Customer Content or Customer Data Network, Customer shall promptly provide AIS with written notice of such claim.
   
    
9. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
   CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, THE AIRECOMM BROADBAND NETWORK IS AT ITS SOLE RISK AND THAT NEITHER AIS NOR THE AIS AFFILIATES SHALL BE LIABLE IN CONNECTION WITH ANY USAGE OF THE SERVICE PACKAGE BY CUSTOMER OR ANY THIRD PARTY. NONE OF THE AIS PARTIES REPRESENT OR WARRANT THAT THE SERVICE PACKAGE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY REPRESENTATION OR WARRANTY AS TO THE AVAILABILITY OR SCOPE OF THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, AVAILABILITY OF THE CUSTOMER NETWORK LINK, OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE PACKAGE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE OR MERCHANDISE ADVERTISED, PURCHASED OR PROVIDED THROUGH THE SERVICE PACKAGE. CUSTOMER ACKNOWLEDGES THAT THE PERFORMANCE OF THE SERVICE PACKAGE WILL VARY FROM TIME TO TIME BASED ON NETWORK USAGE AND OTHER FACTORS, AND THAT NO MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. NEITHER AIS NOR THE AIS AFFILIATES SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE CUSTOMER DATA NETWORK, CUSTOMER REMOTE NETWORKS, COMPUTERS, E-MAIL MESSAGES, DATA FILES, PROGRAMS OR ANY OTHER INFORMATION OF THE CUSTOMER, ITS USERS, OR OTHER THIRD PARTIES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER AIS NOR THE AIS AFFILIATES ENDORSE OR WARRANT, AND NEITHER SHALL BE RESPONSIBLE IN ANY REGARD FOR, ANY MERCHANDISE OR SERVICES ADVERTISED BY OR ORDERED THROUGH THE SERVICE PACKAGE FROM THIRD PARTIES OR OTHER COMMERCIAL TRANSACTIONS WITH THIRD PARTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.A, THE SERVICE PACKAGE, INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR QUIET ENJOYMENT OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT ALL USE OF THE AIRECOMM BROADBAND SERVICE (INCLUDING BUT NOT LIMITED TO THE ACCESSING AND USE OF CONTENT, INFORMATION AND SERVICES, THE EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO CUSTOMER AND THE DOWNLOADING OF COMPUTER FILES) IS AT CUSTOMER'S SOLE RISK. CUSTOMER UNDERSTANDS THAT, EXCEPT FOR INTENTIONAL AND MALICIOUS ACTS OF INSTALLERS, THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE AIRECOMM BROADBAND SERVICE, EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO CUSTOMER'S COMPUTER(S) OR OTHER HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NONE OF THE AIS PARTIES SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, HARDWARE, DATA OR FILES. EXCEPT FOR THE REFUND EXPRESSLY PROVIDED IN SECTION 7G OR THE CREDITS EXPRESSLY PROVIDED IN SECTION 6B, IN NO EVENT (INCLUDING NEGLIGENCE) WILL ANY AIS PARTY OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE PACKAGE, OR ANY CONTENT, INFORMATION SERVICES, EQUIPMENT OR SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE AIRECOMM BROADBAND SERVICE, ACTION TAKEN TO PROTECT THE AIRECOMM BROADBAND SERVICE OR THE BREACH OF ANY WARRANTY OR REPRESENTATION, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE. IN ANY EVENT, THE AGGREGATE LIABILITY OF AIS AND THE AIS AFFILIATES TO CUSTOMER FOR ANY REASON AND UPON ALL CAUSES OF ACTION IN THE AGGREGATE RAISED UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY) SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. CUSTOMER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO ALL CONTENT OR INFORMATION SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICE PACKAGE, AND ARE FOR THE BENEFIT OF AIS AND THE AIS AFFILIATES.
   
    
10. MONITORING
    AIS retains the right, but shall not have any obligation, to review content on public areas of the AireComm Broadband Service, including chat rooms, bulletin boards and forums, in order to determine compliance with this Agreement and any rules now or hereafter established by AIS from time to time. AIS will have the right in its sole discretion to edit, refuse to post, request removal of, or remove any material submitted to or posted on any portion of the Service Package, including personal home pages. Without limiting the foregoing, AIS shall have the right to remove any material that AIS, in its sole discretion, determines to be unacceptable or to violate the terms of this Agreement, any AIS bandwidth utilization limitations or other Terms of Use. In the event any such violation or objectionable material is found, AIS may suspend or discontinue Customer's use of the Service Package as more fully described in Section 7G. Under no circumstances, however, does or will AIS undertake any obligations to review or determine the accuracy of any postings.
    
     
11. INDEMNIFICATION
    Customer, at its own expense, agrees to defend, indemnify and hold harmless AIS, the AIS Affiliates and third party content and information service providers and their respective officers, directors, employees and agents, from and against all claims, liabilities, damages and expenses, including attorneys' fees, arising out of or relating to: the use of the Service Package provided to Customer, including, but not limited to, any service provided or performed through the Service Package or agreed to be performed through the Service Package or any product sold through the Service Package by Customer, its agents, employees or assigns; any unauthorized access to, or alteration, theft or destruction of Customer or third party information; any injury to person or property caused by any products sold or otherwise distributed in connection with the Customer's web site or Customer Data Network; any material supplied by Customer, including, but not limited to, any domain name provided by Customer to AIS for registration or use with the Customer's web site or Customer Data Network, which infringes or allegedly infringes on the proprietary rights of a third party; intellectual property rights infringement, including, but not limited to, copyright infringement; any defective products sold to anybody or any company through Customer's web site or Customer Data Network; or Customer's breach of its confidentiality obligations or breach of any of its representations or warranties.
    
     
12. NOTIFICATIONS
    1. Customer's privacy interests, including Customer's ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the Federal Cable Communications Act (the "Cable Act") and the Electronic Communications Privacy Act. Personally identifiable information that may be collected, used or disclosed in accordance with applicable laws, is described in the Subscriber Privacy Notice delivered to Customer, which is incorporated herein by reference. Customer acknowledges receipt of the Subscriber Privacy Notice. In addition to the foregoing, Customer hereby acknowledges and agrees that AIS may disclose Customer's and Customer Employees' personally identifiable information as required by law or regulation or by the American Registry for Internet Numbers ("ARIN") or any similar agency.
    2. In addition to actions and disclosures specifically authorized by law or statute or authorized elsewhere in this Agreement, AIS shall have the right (except where prohibited by law notwithstanding Customer's consent), but not the obligation, to disclose any information to protect its rights, property and/or operations, or where circumstances suggest that individual or public safety is in peril. Customer hereby consents to such actions or disclosures.
    
     
13. ENTIRE AGREEMENT
    This Agreement, Exhibits, Work Orders and any operating rules for the Service Package established by AIS now or hereafter constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. Acceptance or use of the Service Package shall constitute acceptance of the terms and conditions herein. In the event of a conflict between the terms and conditions of this Agreement and any Work Order, the terms and conditions of this Agreement shall control. In addition, in the event that AIS permits a Customer to use its own standard Work Order forms to order AireComm Broadband Services from AIS hereunder, the parties hereby acknowledge and agree that no terms or provisions that may appear on any such Customer Work Order shall modify the terms and conditions set forth in this Agreement.
    
     
14. MISCELLANEOUS
    In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth herein, and the remainder of this Agreement shall remain in full force and effect. No waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default. Customer may not assign this Agreement without the prior written consent of AIS, which shall not be unreasonably withheld. AIS may assign its rights and obligations under this Agreement in whole or in part to any lender or third party with whom AIS becomes affiliated with. Customer understands and agrees that, regardless of any such assignment, the rights and obligations of AIS herein may accrue to, or be fulfilled by, any AIS Affiliates as well as AIS. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise, or employee relationship between the Parties. Any notice, under this Agreement shall be given in writing and shall be deemed to have been given when actually received by the other Party. Notices shall be delivered to Customer at its address, facsimile number or email address set forth on the Cover Sheet, or to such other address, facsimile number or email address as is given by Customer to AIS in writing. Notices shall be delivered to AIS at the address set forth on the Cover Sheet. The provisions of Sections 2.D, 3, 4.A, 4.C, 4.E, 5, 6.B, 6.C, 7.A, 7.B., 7.D, 7.G, 7.H, 9, 11, 14, and 15 shall survive the completion, expiration, termination or cancellation of this Agreement. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
    
     
15. APPLICABLE LAW AND VENUE
    This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of South Carolina except for its conflicts of law principles.
    
     
16. FORCE MAJEURE
    AIS shall have no liability due to circumstances beyond its control, including, but not limited to, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike, weather, any unauthorized access to or destruction or modification of the Service Package or the AireComm Broadband Network, in whole or in part, or act or failure to act of Customer or any third party using the Service Package.
    
     
17. DEFINITIONS
    1. "Computer" means a personal computer(s) which (i) does not provide any other computers with access to any features of any Service Package; and (ii) meets certain minimum configuration requirements, which may include a Network Interface Card ("NIC"), as specified from time to time by AIS generally.
    2. "Confidential Information" means the AIS Materials, Equipment, Software and any other equipment and software provided or licensed to Customer by AIS or which is identified by AIS as confidential or would otherwise be understood to be confidential by a reasonable person.
    3. "Customer Content" means the content contained on the Customer's web site.
    4. "Customer Data Network" means Customer's data communications network, including, but not limited to, the equipment residing at the Customer's site which connects such data network to the network facilities (including, but not limited to, a switch, router or antenna) linking such data network to a AireComm Broadband Server.
    5. "Customer Employee" means an individual who is either a full or part time Customer employee or affiliate of Customer, who requires access to the Customer Data Network.
    6. "Customer Network Link" means the high speed point-to-point communications circuit between a AireComm Broadband Server and the Customer Data Network used to provide access to the Customer Data Network from a Computer or Computers at Customer Subscriber Sites.
    7. "Customer Remote Network" means a Customer-owned LAN, which is not geographically co-located with Customer's Data Network.
    8. "Customer Subscriber" means each Customer Employee or Customer Remote Network, which is party to or otherwise covered by an effective Subscriber Agreement for AIS's Broadband Services.
    9. "Customer Subscriber Site" means the location of the Customer Remote Network or Customer Subscriber Computer, which is connected to the AireComm Broadband Network.
    10. "Equipment" means the equipment, including, but not limited to, the cabling and related splitters, router and antenna provided by AIS, its agents or contractors pursuant to this Agreement (excluding equipment purchased by Customer or required to construct, operate and maintain a proxy Server).
    11. "Party" or "Parties" means either AIS or Customer, or AIS and Customer, respectively.
    12. "AireComm Broadband Content" means an aggregation of content and applications provided by AIS to its AIS Affiliates.
    13. "AireComm Broadband Network" means the data transmission network provided by AIS and/or AIS Affiliates through which Customer accesses portions of the Service Package or Customer Subscriber accesses the Customer Data Network.
    14. "AireComm Broadband Service Specifications Guide" means the then-current version of the document titled "AireComm Broadband Service Specifications Guide," which provides additional information regarding the services and features offered under this Agreement, and which is incorporated herein by reference. AIS may revise this guide from time to time without notice.
    15. "AireComm Broadband Services" means AireComm Broadband Network and, if applicable, AireComm Broadband Content.
    16. "Server" means a computer that provides services (including, but not limited to, acting as a network routing device or gateway for access to other networks) to other computing or terminal devices.
    17. "Service Charges" means the fees set forth on the Cover Sheet which may be modified by AIS from time to time in its discretion, including all applicable local, state and federal fees or taxes.
    18. "Service Package" means the BOC Services as set forth in Cover Sheet, the AIS Services as set forth in Cover Sheet, or any other services ordered by Customer hereunder as set forth in the Cover Sheet including, without limitation, any related Equipment, Software, AireComm Broadband Content, and general Internet access (unless otherwise stipulated in writing), offered by AireComm Broadband and subscribed to by Customer as identified on the Cover Sheet and any Work Order(s) and schedules to this Agreement and any accompanying documentation and other materials in any form.
    19. "Software" means all computing software licensed by AIS to Customer hereunder.
    20. "Subscriber Agreement" means the current form of subscription agreement(s) for AireComm Broadband Services.
    21. "System Requirements" means those certain minimum hardware and software requirements specified by AIS that each Computer will need to meet.
    22. "Term" means the Initial Term, plus any Renewal Terms.
    23. "Terms of Use" means all rules, terms and conditions set forth in this Agreement or now or hereafter otherwise established by AIS for the AireComm Broadband Service, as may be modified from time to time at AIS's sole discretion. The then-current copy of the Terms of Use are available at http//help.AISable.com/html/policies.html and WWW.AIRECOMM.NET.
    24. "AIS Affiliate" means (i) any operator or other entity (including AIS) that is authorized pursuant to an effective affiliation agreement with AIS to distribute to subscribers a broadband delivered online service based upon and including the AireComm Broadband Content via the AireComm Broadband Network or (ii) any entity under common control with AIS.
    25. "AIS Materials" shall have the meaning given in Section 5.A.
    26. "AIS Parties" means AIS, AIS's third-party content and service providers, corporate parents, members, affiliates, subsidiaries and suppliers, and the directors, officers, employees, agents, third-party content and service providers or licensors of any of the foregoing.
    27. "AIS Service" shall have the meaning set forth in Cover Sheet.
    28. "Web" or "web" means the World Wide Web.
    29. "Work Order" means the written description of Equipment, Software, ancillary equipment, Computers, connections, installation remarks and related Customer charges for the installation and operation of a Service Package. A Work Order may be submitted in writing, verbally, or via email from an authorized Customer representative.