Master Service Agreement

This Agreement provides the general terms and conditions applicable to Customer’s purchase of mobile content creation and delivery services (“Service”) from TheoNetworks.
ARTICLE 1. ORDERS FOR AND DELIVERY OF SERVICE

1.1 Submission and Acceptance of Customer Order Form). Customer may submit requests for Service in a form designated by TheoNetworks (“Services Order Form”). The Services Order Form shall contain the duration for which Service is ordered (“Service Term”) and pricing for Service; Service will continue on a month to month basis at the expiration of the Service Term at the Agreement’s then current rates. TheoNetworks will notify Customer of acceptance (in writing or electronically) of the Services Order Form and will begin setup of services on that date; renewal Customer Orders will be accepted by TheoNetworks’s continuation of Service. If Customer submits Customer Orders electronically, Customer shall assure that any passwords or access devices are available only to those having authority to submit Customer Orders.

1.2 Credit Approval and Deposits. Customer will provide TheoNetworks with credit information as requested. TheoNetworks may require Customer to make a deposit as a condition of TheoNetworks’s acceptance of any Customer Order or continuation of: a) any usage-based Service; or b) any non-usage based Service where Customer fails to timely make any payment due hereunder or TheoNetworks reasonably determines that Customer has had an adverse change in financial condition. Deposits will not exceed 2 months’ estimated charges for Service and will be due upon TheoNetworks’s written request. When Service is discontinued, the deposit will be credited to Customer’s account and the balance refunded.

1.3 Customer Premises. If access to non-TheoNetworks facilities is required for the installation, maintenance or removal of TheoNetworks equipment, Customer shall, at its expense, secure such right of access and shall arrange for the provision and maintenance of power and HVAC as needed for the proper operation of such equipment.

1.4 Scheduled Maintenance and Local Access. Scheduled maintenance will not normally result in Service interruption. If scheduled maintenance requires Service interruption, TheoNetworks will (i) provide Customer 7 days’ prior written notice, (ii) work with Customer to try to minimize Service interruptions and (iii) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. local time. If third party provided local access services are obtained by Customer, Customer will if necessary: (i) provide TheoNetworks with circuit facility information, firm order commitment information and necessary design layout records to enable cross-connects to TheoNetworks Service(s) (such cross connects being provided by TheoNetworks subject to applicable charges), (ii) cooperate with TheoNetworks (including providing necessary LOA’s) in connection with TheoNetworks circuit grooming, and (iii) where a related Service is disconnected or terminated, promptly provide TheoNetworks a written disconnection firm order commitment from the relevant third party provider.

ARTICLE 2. BILLING AND PAYMENT

2.1 Commencement of Billing. Service Commencement Date is the date that a Services Order form is signed. Billing will begin on such date.

2.2 Payment of Invoices and Disputes. Invoices are delivered monthly and due 1 days after the date of invoice. Fixed charges are billed in advance and usage-based charges are billed in arrears. If applicable, Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). Customer is responsible for all charges respecting the Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed). Disputes must be submitted in writing within 90 days from the date of the invoice. If the dispute is resolved against Customer, Customer shall pay such amounts plus interest from the date originally due.

2.3 Taxes and Fees. Except for taxes based on TheoNetwork’s net income, Customer will be responsible for all taxes and fees that arise in any jurisdiction, including, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of Service (whether imposed on TheoNetworks or any affiliate of TheoNetworks). Such charges may be shown on invoices as cost recovery fees. Charges for Service are exclusive of taxes. Customer may present TheoNetworks a valid exemption certificate and TheoNetworks will give effect thereto prospectively.

2.4 Regulatory and Legal Changes. If any change in applicable law, regulation, rule or order materially affects delivery of Service, the parties will negotiate appropriate changes to this Agreement. If the parties are unable to reach agreement within 30 days after TheoNetworks’s delivery of written notice requesting renegotiation: (a) TheoNetworks may pass any increased costs relating to delivery of Service through to Customer and (b) if TheoNetworks does so, Customer may terminate the affected Service without termination liability by delivering written notice to TheoNetworks within 30 days.

2.5 Cancellation and Termination Charges.

(A) Customer may cancel an order (or portion thereof) prior to commencement of services to be provided as specified in the Services Order Form upon written notice to TheoNetworks identifying the affected Services Order Form and Service. If Customer does so, Customer shall pay TheoNetworks a sum to be agreed to by the parties. If Customer terminates the Service due to an uncured breach by TheoNetworks, then Customer shall not be obligated to pay TheoNetworks any cancellation charges.

(B) Customer may terminate Service after commencement of services upon 30 days’ written notice to TheoNetworks identifying the terminated Service. If Customer does so, or if Service is terminated by TheoNetworks as the result of an uncured default by Customer, Customer will be obligated to pay TheoNetworks a sum equal to the minimum contract value for the remainder of the contract term from date of termination. If Customer terminates the Service due to an uncured breach by TheoNetworks, then Customer shall not be obligated to pay TheoNetworks any termination charges. The parties agree that the charges in this Section are a genuine estimate of TheoNetworks’s actual damages and are not a penalty.

(C) In case of change of control of either TheoNetworks or Customer, either party will have the right to terminate the agreement. Intellectual Property, Confidentiality, and Limitation of Liability of this Agreement, and any other provision of this Agreement that by its terms survives termination of this Agreement, shall survive termination of this Agreement.

ARTICLE 3. DEFAULT

If (A) Customer fails to make any payment when due and such failure continues for 5 business days after written notice from TheoNetworks, or (B) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may: (i) terminate this Agreement and/or any Customer Order, in whole or in part, and/or (ii) subject to Section 4.1, pursue any remedies it may have at law or in equity.

ARTICLE 4. LIABILITIES AND SERVICE LEVELS

4.1 No Special Damages. Neither party shall be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of data or cost of purchasing replacement services, or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the performance or failure to perform under this Agreement or any Customer Order.

4.2 Disclaimer of Warranties. THEONETWORKS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, CONTINUOUS OPERATION OF THE SERVICES, SECURITY OF THE INTERNET CONNECTIONS OR OPERATION OF CUSTOMER/END USER EQUIPMENT, OR ABILITY OF ANY BACKUP SERVICES TO RE-ESTABLISH OPERATION OF CUSTOMER/END USER EQUIPMENT. THEONETWORKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, PERFORM AT OR ABOVE CERTAIN LATENCY TIMES, OR BE COMPLETELY SECURE. THEONETWORKS DOES NOT WARRANT ANY CONNECTION TO, TRANSMISSION OVER, NOR RESULTS OF, ANY SOFTWARE, NETWORK CONNECTION OR FACILITIES OR EQUIPMENT NOT PROVIDED BY THEONETWORKS TO CUSTOMER UNDER THIS AGREEMENT. CUSTOMER IS RESPONSIBLE FOR ASSESSING ITS OWN COMPUTER AND TRANSMISSION NETWORK REQUIREMENTS, CONTENT AGGREGATION AND DELIVERY REQUIREMENTS, STREAMING AND DOWNLOAD REQUIREMENTS, AND THE SUSTAINABILITY OF THE SERVICES TO MEET THOSE REQUIREMENTS.

4.3 Limitation of Liability. Except for liability arising out of or related to breach of Confidentiality or Section 4.4 (Indemnification), neither Party shall be liable to the other for any lost profits, or costs of procurement of substitute goods or services, or for any direct or indirect, special, incidental, or consequential damages, including, without limitation, damages for lost data, damages to software or firmware, system downtime, service interruption, inability to access data or services, or costs of procuring and transitioning to substitute services, however caused and under any theory of liability, strict liability, and negligence, and whether or not that Party was or should have been aware of, or was advised of, the possibility of such damages. In no event will TheoNetworks’s total and aggregate liability to CUSTOMER and any End User exceed the lesser of, the amount actually paid by CUSTOMER to TheoNetworks in the three (e) months preceding the date on which any claim arose, and a sum of $5,000. TheoNetworks will have no liability to CUSTOMER for any Internet, Denial of Service or other attacks by any third party, and CUSTOMER has full responsibility for implementation of defensive measures.

4.4 Indemnification. CUSTOMER agrees to defend, indemnify, and hold TheoNetworks harmless from any liability, damages, costs and expenses, including reasonable attorneys’ fees, relating to: (i) a breach of any material representation or warranty provided by CUSTOMER under this Agreement; (ii) a claim that Content or related content infringes any third party copyright, patent, trademark or other intellectual property right; (iii) a claim that Content or related content was misappropriated; or (iv) a claim that Content or related content is libelous or defamatory. CUSTOMER will promptly notify TheoNetworks in writing of any such claim. TheoNetworks shall give CUSTOMER sole control over the defense and/or settlement of any such claim, except that CUSTOMER will not agree to any settlement or compromise that would require TheoNetworks to make any payments or bear any obligations unless CUSTOMER obtains TheoNetworks’s prior written approval. TheoNetworks shall provide CUSTOMER reasonable assistance in such defense at CUSTOMER’ expense.

4.5 Service Levels. The “Service Level” commitments applicable to the Services are found in TheoNetworks’s Service Schedules for each Service. If TheoNetworks does not achieve a Service Level, a credit will be issued to Customer as set forth in the applicable Service Schedule upon Customer’s request. To request a credit, Customer must contact TheoNetworks Customer Service or deliver a written request (with sufficient detail necessary to identify the affected Service) within 10 days after the end of the month in which the credit was earned. In no event shall the total credits issued to Customer per month exceed the monthly recurring charges for the affected Service for that month. Customer’s sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels applicable to the affected Service.

4.6 Performance. CUSTOMER acknowledges that TheoNetworks does not own or control the local circuit link, leased co-location space, leased space cross connects, Internet Service Provider partners providing connectivity to TheoNetworks, other networks outside of the connectivity to TheoNetworks or its Internet Service Provider partners, or the “Internet,” nor is TheoNetworks responsible for the performance (or non-performance) within such networks or within non-TheoNetworks operated interconnection points between the connectivity and other networks. CUSTOMER further acknowledges that TheoNetworks exercises no control over, and has no responsibility for, any content or data transmitted or maintained using the Services nor the information or material accessible upon or actions taken on the Internet, and TheoNetworks expressly disclaims any liability arising there from.

ARTICLE 5. GENERAL TERMS

5.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”). In the event TheoNetworks is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay TheoNetworks for the affected Service for so long as TheoNetworks is unable to deliver the affected Service. Force majeure events along with scheduled maintenance under section 1.4 shall be considered “Excused Outages.” In the event that the duration of the Force Majeure last more than 30 days, either party has the right to terminate this agreement without penalty and all obligations between the parties shall cease.

5.2 Assignment and Resale. Customer may not assign its rights or obligations under this Agreement or any Customer Order without the prior written consent of TheoNetworks, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Customer may resell or otherwise provide the Service to third parties or use the Services in connection with goods or services provided by Customer to third parties (“Customer Provided Services”) provided that Customer shall indemnify, defend and hold TheoNetworks and its affiliates harmless from any claims arising from or related to any Customer Provided Services. If Customer resells telecommunications services, Customer certifies that it has filed all required documentation and will at all relevant times have the requisite authority with appropriate regulatory agencies respecting the same. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

5.3 Notices. All notices shall be in writing and sufficient and received if delivered in person, or when sent via facsimile, pre-paid overnight courier, electronic mail (if an e-mail address is provided below) or sent by U.S. Postal Service (or First Class International Post (as applicable)), addressed as follows or all notices including billing inquiries/disputes, requests for Service Level credits and/or requests for disconnection of Service (other than for default):

Either party may change its notice address upon notice to the other party. All notices shall be deemed to have been given on (i) the date delivered if delivered personally, by facsimile or e-mail (one business day after delivery if delivered on a weekend or legal holiday), (ii) the business day after dispatch if sent by overnight courier, or (iii) the third business day after posting if sent by U.S. Postal Service (or other applicable postal delivery service).

5.4 Data Protection. TheoNetworks may transfer, process and store billing and utilization data and other data necessary for TheoNetworks’s operation of its services and for the performance of its obligations under this Agreement to or from the United States. Customer consents that TheoNetworks may (i) transfer, store and process such data in the United States; and (ii) use such data for its own internal purposes only and as allowed by law. This data will under no circumstances be disclosed to third parties.

5.5 Intellectual Property and Publicity. Neither party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, trade names, patents, trade secrets or other form of intellectual property of the other party or its affiliates without the express prior written authorization of the other party. Neither party shall issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed between the parties in writing. Any information or documentation disclosed between the parties during the performance of this Agreement (including this Agreement) shall be subject to the terms and conditions of the applicable non-disclosure agreement then in effect between the parties.

5.6 Governing Law; Amendment. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, without regard to its choice of law rules. This Agreement, including any Service Schedule(s) and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).

5.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. Facsimile signatures shall be sufficient to bind the parties to this Agreement.