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AGREEMENT WHEREAS, AIT is a provider of Internet Services (“AIT's Internet Services”) and AIT maintains an Internet network (the “AIT Network”) consisting of but not limited to servers, routers, hubs, leased lines, customers, software; and WHEREAS, PAL PARTNER is a provider of products and/or services, and is desirous of branding under its own name and selling to AIT's customers or “PAL Members" at a discount according to the terms set forth herein; and WHEREAS, the parties have agreed to cooperate with each other under the terms and conditions contained herein for the parties' mutual benefit. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the parties do hereby agree as follows: 1. MUTUAL OBLIGATIONS 1.1. PAL PARTNER agrees to offer products and services for the benefit of AIT's customers who participate in AIT's PAL Program, (PAL Members), at a discount below PAL PARTNER's normal or stated retail price. AIT will provide a mechanism for PAL PARTNER to identify AIT's PAL Members which is acceptable to both AIT and PAL PARTNER 1.2. PAL PARTNER will provide any customer services and support to include but not limited to technical support, billing, cancellations and upgrades related PAL PARTNER's products and/or services at PAL PARTNER's own expense and at PAL PARTNER's own premises, or as otherwise arranged by PAL PARTNER with PAL Members. 1.3. PAL PARTNER agrees that it shall use best efforts to advertise and refer AIT's Internet Services to PAL PARTNER'S customers through the term of this Agreement by providing a “link” to the AIT Homepage at www.aitcom.net from a URL where PAL PARTNER usually places such links for its company friends and partners. 1.4. PAL PARTNER warrants and represents that it maintains all authority and necessary licenses to provide the products and/or services herein. PAL PARTNER shall immediately notify AIT in the event PAL PARTNER is prohibited from providing the products and/or services herein. 2. FORCE MAJEURE. The parties' obligations under this Agreement are subject to, and neither party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the party's reasonable control. 3. TERM OF AGREEMENT. The term of this Agreement shall be from month to month. Notwithstanding the foregoing, either party, without waiving any rights or remedies set forth in this Agreement, or available at law, may terminate this Agreement immediately without notice under any of the following circumstances: the other party becomes or is declared insolvent or bankrupt, is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer in its behalf, makes an assignment for the benefits of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or PAL PARTNER lacks the requisite authority to sell products and services herein. 4. NO WARRANTIES 4.1. ALL SERVICES PROVIDED BY AIT TO PAL PARTNER's CUSTOMERS SHALL BE OF THE SAME QUALITY WHICH AIT PROVIDES TO ITS CUSTOMERS. 4.2. IN NO EVENT SHALL AIT BE LIABLE TO PAL PARTNER OR ANY OF PAL PARTNER'S CUSTOMERS OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY OTHER RESPECT, FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF FORESEEABLE, ARISING OUT OF ANY MISTAKE, ACCIDENT, ERROR, OMISSION, INTERRUPTION, OR DEFECT IN TRANSMISSION, OR DELAY ARISING OUT OF OR RELATING TO THE SERVICES OR THE OBLIGATIONS OF AIT PURSUANT TO THIS AGREEMENT AND ANY EXHIBITS OR SCHEDULES HERETO INCLUDING, WITHOUT LIMITATION, (i) ANY FAILURE TO PROVIDE TIMELY OR ACCURATELY PROVISION OR INSTALL ANY PORTION OF THE AIT INTERNET SERVICES, OR (ii) ADVERSE CONDITIONS WHICH MAY RESULT FROM ACTIONS BY REGULATORY OR JUDICIAL AUTHORITIES. AIT'S ENTIRE LIABILITY FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER, EXCEPT FOR THOSE ARISING FROM OR IN CONNECTION WITH AIT'S GROSS NEGLIGENCE, SHALL IN NO EVENT EXCEED THE MONIES ACTUALLY PAID TO AIT UNDER THIS AGREEMENT BY PAL PARTNER FOR THE SPECIFIC SERVICES THAT GIVE RISE TO THE CLAIM. NO ACTION OR PROCEEDING AGAINST AIT MAY BE COMMENCED MORE THAT TWO YEARS AFTER THE SERVICES ARE RENDERED. 4.3. ALL SERVICES PROVIDED BY AIT ARE PROVIDED “AS IS”. AIT MAKES NO WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE IN CONNECTION WITH ITS NETWORK OR OF THE SERVICE OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY AIT ARE HEREBY EXCLUDED AND DISCLAIMED. 5. INDEMNIFICATION. PAL PARTNER and AIT agree to indemnify and hold one another and one another's directors, officers, employees, agents and advisors harmless from and against any and all claims, demands, or actions and costs, liabilities, or losses arising out of any actual or alleged infringement arising out of material, data, information or other acts or omissions of one another and/or one another's customers, and/or arising out of any material misstatements or misrepresentations made by one another or one another's employees, or agents, and sales, use or other taxes or duties, payable with respect to any product sales made by one another in one another's respective business operations. 6. NO AGENCY. Neither party shall have the authority to bind the other by contract or otherwise make any representations or guarantees on behalf of the other. Each party acknowledges and agrees that the relationship arising from this Agreement does not constitute an agency, joint venture, partnership, employee relationship or franchise. PAL PARTNER acknowledges and agrees that it is an independent entity. 7. INTERPRETATION. The words and phrases used herein shall have the meaning generally understood in the telecommunications/Internet/Software industry. This Agreement shall be construed in accordance with its fair meaning and not against the drafting party. 8. SEVERABILITY. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part(s) thereof shall be stricken from this Agreement and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement, and the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible. 9. CHOICE OF LAW. Any disputes that may arise under this Agreement shall be resolved in accordance with the laws of the State of North Carolina. Each party agrees that jurisdiction and venue for any and all disputes under this Agreement will be proper in Cumberland or Wake Counties, North Carolina. 10. NOTICES. All notices, demands, requests and other communications required or permitted hereunder shall be in writing to the last known place of business of either party, and shall be deemed to be delivered or duly received when actually received, if hand-delivered; or, if earlier and regardless of whether actually received, two (2) days after being deposited with an overnight courier service, correctly addressed and postage prepaid; or on the date of facsimile transmission; or four (4) business days after being deposited in the United States mail, correctly addressed and first-class postage prepaid.
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AIT, Inc.
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