Skykit License Agreement

THIS AGREEMENT IS A BINDING AGREEMENT BETWEEN SKYKIT LLC, A MINNESOTA LIMITED LIABILITY COMPANY DOING BUSINESS AT 420 NORTH 5TH STREET, SUITE 400, MINNEAPOLIS, MINNESOTA (“SKYKIT”) AND THE CUSTOMER NAMED ON THE APPLICABLE ORDER (“CUSTOMER”).

THIS LICENSE AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S LICENSE AND USE OF THE SKYKIT SOFTWARE, SKYKIT SERVICES, SKYKIT CONTENT AND THE DOCUMENTATION DESCRIBED HEREIN. BY (1) EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, OR (2) ELECTRONICALLY ACCEPTING THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT WITHOUT MODIFICATION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM CUSTOMER SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SKYKIT SOFTWARE, SKYKIT SERVICES, SKYKIT CONTENT OR DOCUMENTATION.

1. Definitions.
   1. “Confidential Information” means the Documentation, Software, Skykit Content, the Service (including the results of any performance tests of the Service) and any and all source code, inventions, know-how, and ideas, trade secrets, updates, any non-public information regarding the business of a party (where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information is, by its nature, intended to be maintained as generally confidential). For purposes of this Agreement, Confidential Information does not include any information which: (a) is publicly known at the time of its disclosure; (b) is published or otherwise made known to the public without breach of this Agreement; (c) was generated independently by a party before its receipt from the other party; or (d) is obtained by a party from an unrelated third party not under a duty of confidentiality. The Documentation, Software, Skykit Content and Service are the Confidential Information of Skykit.
   2. “Customer Content” means the data inputted or content used by Customer or Third-Party Content providers on Customer’s behalf, for the purpose of using the Service or facilitating Customer’s use of the Service.
   3. “Display Subscriptions” means the display subscription(s) purchased by Customer pursuant to an Order which entitles Customer to access and use the Service and the Documentation.
   4. “Documentation” means the document(s) made available to Customer by Skykit at setup/installation that sets out the user instructions for the Service.
   5. “Force Majeure Event” means an act of God, weather conditions, natural disasters, dangerous or environmental goods incidents, public enemies, including but not limited to, hackers, quarantine, riots, strikes, work stoppages or slowdowns, or other labor disputes or disturbances, civil commotions or hazards incident to a state of war or terroristic threat or action, local or national disruptions in ground or air transportation networks or systems, or other events beyond Skykit’s reasonable control and effort that prevent Skykit from performing its obligations under this Agreement.
   6. “Intellectual Property Right” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, patent applications and other industrial property rights, (e) all other intellectual property rights, of every kind, however designated, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
   7. “Order“ means proposal, statement of work, order form or similar document between Customer and Skykit or Reseller that is executed by the parties and that describes the goods and services to be provided and the fees to be charged. The Order may include the Initial Subscription Term, number of Display Subscription, Subscription Fees, payment terms, other services to be provided and other fees to be charged.
   8. “Reseller” means an entity authorized to sell the Skykit Service to Customer and is responsible for managing the end-to-end sales process with Customer.
   9. “Skykit Content” means the digital content Skykit provides to Customer as part of the Service upon payment of the Subscription Fees.
   10. “Skykit Service” or “Service” means the proprietary digital content management service created by Skykit and the subscription service provided by Skykit to Customer under this Agreement, as more particularly described in the Documentation. The Service may include the Skykit Software and the Skykit Content.
   11. “Skykit Software” or “Software” means any tools, objects, programs (both in executable code and source code form and the business processes identified in the documentation surrounding such code), algorithms, processes, methodologies, instructions, comments, design documentation, scripts, manuals, user guides and other materials related to use of the above, and all modifications, enhancements and derivative works of the foregoing, all as either developed by Skykit or licensed from a third party at any time prior to or during the term of this Agreement , that are useful or necessary in the creation, maintenance, execution, or use of the Service.
   12. “Subscription Fees” means the subscription fees payable by Customer to Skykit for the Display Subscriptions, as set out the Order.
   13. “Support Services Policy” means Skykit’s policy for providing support in relation to the Service as made available as a part of the Documentation or at a website address as may be provided to Customer from time to time.
   14. “Third-Party Content” means the digital content and applications Customer acquires from third parties and not from Skykit for use with the Service.
   15. “Virus” means a device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data
       (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
2. Scope of License.
   Subject to Customer’s purchase of a subscription to the Skykit Service, timely payment of all fees, and the other terms and conditions of this Agreement, Skykit hereby grants to Customer a non-exclusive, non-transferable license to use the Skykit Service, the Skykit Software, the Skykit Content and the Documentation specified in an Order during the Subscription Term solely for Customer’s business operations. 3. License Restrictions.
3. License Restrictions
   1. Customer shall at no time exceed the number of displays allocated to Customer under its subscription. If Customer exceeds its usage of the Skykit Service, Customer shall pay to Skykit additional fees for such excess use. Skykit may audit Customer’s compliance under this Agreement upon reasonable advance notice to Customer.
   2. Customer agrees to comply with Skykit’s Acceptable Use Policy (“AUP”), available at www.skykit.com/aup and as may be amended by Skykit from time to time. In addition, Customer shall not access, store, distribute or transmit any Viruses, or any digital content or application through its use of the Service that violates the AUP.
   3. Customer shall not (i) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and (ii) except to the extent expressly permitted under this Agreement: (A) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Documentation in any form or media or by any means; (B) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, or access all or any part of the Service or Documentation in order to build a product or service which competes with Skykit; (C) use the Service and/or Documentation to provide services to third parties; (D) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party; or (E) attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation.
   4. Customer shall use all commercially reasonable efforts to prevent, and is solely responsible for, any unauthorized access to, or use of, the Service and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Skykit and remain responsible for any unauthorized access or use of the Services or Documentation using Customer’s credentials.
4. G Suite and Services.
   Customer acknowledges that implementation of the Service requires use of some features within G Suite and Services. Customer acknowledges that Agosto, Inc. (Skykit’s parent company) is an authorized reseller of G Suite and Chrome OS services (“G Suite”) and that Customer is required to obtain licenses from Google Inc. (“Google”) as necessary to access and use G Suite and Chrome OS services. The terms under which Customer shall be entitled to use G Suite are as set forth in the G Suite for Business via Reseller Agreement (“Google ToS”) available a httpssss://gsuite.google.com/terms/reseller_premier_terms.html and
   https://www.google.com/chromebook/termsofservice.html, as may be amended by Google. Customer agrees to accept and comply with the then current Google ToS. The Service provided by Skykit hereunder does not include any warranties of performance related to G Suite and Services, and neither Skykit nor its parent company Agosto, Inc. (“Agosto”) shall be liable for the operation, performance, or content of G Suite and Services. Skykit, through Agosto, Inc., is authorized by Google to provide “standard support” for G Suite and Services so long as Customer complies with the terms of this Agreement.
5. Service Levels.
   Skykit will use industry-appropriate efforts to make the Service available to Customer on a 24×7, 365 days per year basis. Skykit shall have no liability to Customer if the Service is unavailable for any of the following non-exclusive events: (A) scheduled or emergency downtime; (B) compliance with laws, regulations or requirements of state or federal governments, including directions or orders of public authorities acting with actual, apparent or implied authority; (C) acts of commission or omission of any person or party other than Skykit, its officers, directors, shareholders and employees; (D) degradation, disruption or failure of communication systems, information systems, mechanical systems or utilities, due to events beyond Skykit’s control; (E) a Force Majeure Event; (F) Customer’s use of the Service in violation of applicable law or regulation or any of the terms and conditions of this Agreement, the Google ToS or the AUP or (G) the Subscription Term has expired.
6. Suspension of the Skykit Service.
   Skykit reserves the right to suspend Customer’s use of the Service if: (A) Skykit acts in good faith upon the instructions or directives of a court of competent jurisdiction or law enforcement or in response to a disaster declaration; (B) Skykit properly notified Customer of a material breach of this Agreement or has a reasonable basis on which to suspect that Customer is in material breach of this Agreement but has not yet had the reasonable opportunity to notify Customer of such breach; (C) Skykit has a reasonable basis on which to suspect that Customer’s account information contains inaccuracies or falsehoods; or (D) Customer fails to pay the Subscription Fees.
7. Support.
   Skykit will, as part of the Service and at no additional cost to Customer, provide Customer with Skykit’s standard customer support services in accordance with Skykit’s then-current Support Services Policy, which Skykit may amend from time to time.
8. Customer Content.
   Customer’s display of any Customer Content through the Service is at Customer’s own risk. Customer retains all Intellectual Property Rights in and to Customer Content. Customer represents and warrants that it has all of the rights, licenses, consents, permissions and releases necessary to use, reproduce, publish, display publicly, perform publicly or distribute or otherwise use the Customer Content and to grant to Skykit all of the license rights granted herein. For purposes of providing the Service to Customer, Customer grants to Skykit (and its successors, assigns, affiliates and third-party service providers) a world-wide, non-exclusive, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, reproduce, modify, distribute, publicly display and otherwise exploit such Customer Content on and in connection with the Service, all according to Skykit distribution settings selected by Customer.
9. Customer Obligations.
   1. Customer must comply with all applicable laws and regulations relating to its activities as contemplated by this Agreement, including but not limited to all applicable privacy and data security laws and any applicable export control laws and regulations that may apply in respect of the use of the Service outside of the United States or to a non-U.S. person.
   2. Customer shall: (A) own or have rights to use Customer Content; (B) provide Skykit with all necessary cooperation in relation to this Agreement and all necessary access to such information as may be required by Skykit in order to render the Service, including but not limited to Customer Content, security access information and configuration services; (C) ensure that its network and systems comply with the relevant specifications provided by Skykit from time to time; and (D) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Internet and any cloud platform solution used by Customer, and for resolving all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’ network connections or telecommunications links or caused by the Internet; (E) be responsible for the physical and network security of its own devices and any devices that may be supplied by Skykit; (F) be responsible for logical access rights to the Customer Content, Skykit Content and to Customer’s own devices and any devices that may be supplied by Skykit; and (G) not install, store or configure any additional data, software or services on any device supplied by Skykit.
10. Third Party Content Providers.
    Customer acknowledges that the Service may enable or assist it to access the digital content and applications of, correspond with, and purchase products and services from, third parties via third-party websites or otherwise and that it does so solely at its own risk. Skykit makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any Third Party Content provider and their content, websites, or any transactions completed, and any contract entered into by Customer, with any Third Party Content provider by whatever means. Any contract entered into and any transaction completed with a Third Party Content provider via any third-party website or otherwise is between Customer and the relevant Third Party Content provider, and not Skykit.
11. Proprietary Rights.
    1. Customer acknowledges that Skykit and/or its licensors own all Intellectual Property Rights in the Software, Service, Skykit Content and the Documentation. All rights not expressly licensed by Skykit under this Agreement are reserved. As between the parties, Skykit shall retain all ownership rights in and to the Software, Service, Skykit Content and the Documentation, all updates and/or upgrades thereto and other derivative works of thereof and all Intellectual Property Rights incorporated into or related to the foregoing.
    2. G Suite and Services, and all Intellectual Property Rights associated with or relating to G Suite and Services including any patent, copyright, trademark, or trade secrets are and shall remain the intellectual property of Google.
12. Fees and Payments.
    1. Customer shall pay the Subscription Fees to Skykit for the Display Subscriptions in accordance with this Section 12 and the Order. In addition, Customer shall pay to Skykit (or, if applicable, Reseller) all other fees and expenses set forth on the Order for Skykit Services or other services, deliverables, or expenses. Unless otherwise set forth on the Order or otherwise agreed to in writing with a Reseller, Customer shall pay all Subscription Fees in advance of the Subscription Term; all other fees shall be due and payable within thirty (30) days after Customer’s receipt of an invoice (or, if applicable, the Reseller’s payment terms).
    2. Customer may purchase additional Display Subscriptions from time to time during any Subscription Term in excess of the number set out on the initial or current Order. If Customer purchases additional Display Subscriptions part way through the Initial Subscription Term or any Renewal Period, such Subscription Fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period.
    3. All amounts and fees shall be payable in U.S. Dollars, are non-cancellable and nonrefundable and are exclusive of value added tax, sales tax or any other tax, which shall be added to Skykit’s (or, if applicable, Reseller’s) invoice(s) at the appropriate rate. Skykit and Reseller shall be entitled to increase the Subscription Fees and other fees during each Renewal Period upon thirty (30) days’ prior notice to Customer.
    4. If Skykit (or, if applicable, Reseller) has not received payment when due, including for any subsequent Renewal Period by the end of the Initial Subscription Term or any Renewal Period, and without prejudice to any other rights and remedies of Skykit and Reseller, Skykit may disable Customer’s password, account and access to all or part of the Service without liability to Customer, and Skykit shall be under no obligation to provide any or all of the Service while the amounts concerned remain unpaid. If Customer disputes the amount of an invoice in good faith, Customer shall notify Skykit (or, if applicable, Reseller) in writing within ten (10) business days of receipt of such disputed invoice by providing a report setting out the disputed amounts, and the parties shall cooperate to establish the correct Subscription Fees within twenty (20) days of such notification. Skykit or Reseller shall then issue a corrected invoice for the resolved amount, and Customer shall pay the amount of the invoice within thirty (30) days after receipt of such corrected invoice.
13. Confidentiality.
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.
    2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    3. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 13 and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief from any court of competent jurisdiction, in addition to whatever remedies it might have under this Agreement. The requirement to arbitrate disputes between the parties set forth does not apply to disputes arising under this Section.
14. Indemnity.
    1. Customer shall defend, indemnify and hold harmless Skykit, Agosto, Reseller, their affiliated entities, and their respective officers, directors, employees, agents and subcontractors against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (collectively, “Claims”) arising out of or in connection with (i) Customer’s use of the Software, Service, Skykit Content and/or Documentation and G Suite; (ii) the Customer Content, including that the Customer Content infringes a third party’s Intellectual Property Right; or (iii) Customer’s breach of its representations, warranties, covenants, or obligations under this Agreement, provided that: (A) Customer is given prompt notice of any such claim; (B) Skykit provides reasonable cooperation to Customer in the defense and settlement of such claim, at Customer’s sole cost and expense; and (C) Customer is given sole authority to defend or settle the claim.
    2. Subject to Section 14(d), Skykit shall defend Customer, its officers, directors and employees against any Claims arising from or relating to allegations that Customer’s sue of the Software, Service, Skykit Content or Documentation in accordance with this Agreement infringes a U.S. Intellectual Property Right effective as of the effective date of this Agreement, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such Claims, including reasonable attorneys’ fees, provided that: (A) Skykit is given prompt notice of any such claim; (B) Customer provides reasonable cooperation to Skykit in the defense and settlement of such Claim, at Skykit’s sole cost and expense; and (C) Skykit is given sole authority to defend or settle the Claim.
    3. In the defense or settlement of any claim, Skykit may procure the right for Customer to continue using the Software, Service, Skykit Content or Documentation, replace or modify the Software, Service, Skykit Content or Documentation so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) business days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer, unless a court of competent jurisdiction orders otherwise. The foregoing states Customer’s sole and exclusive rights and remedies, and Skykit’s, its affiliated entities, and their respective employees, agents and subcontractors entire obligations and liability, for infringement of any Intellectual Property Rights.
    4. In no event shall Skykit, Agosto, Reseller, their affiliated entities, or their respective officers, directors, employees, agents and subcontractors be liable to Customer to the extent that the alleged infringement is based on: (A) modification of the Software, Service, Skykit Content or Documentation by anyone other than Skykit; (B) Customer’s use of the Software, Service, Skykit Content or Documentation in a manner contrary to the instructions given to Customer by Skykit; (C) Customer’s use of the Software, Service, Skykit Content or Documentation after notice of the alleged or actual infringement from Skykit or any appropriate authority; (D) Customer’s display of content or applications that violate any federal or state law, statute or statutory provision; or (E) any combination, operation or us of the Software, Service, Skykit Content or Documentation with systems, software or other resources not provided by Skykit.
15. Warranty and Disclaimer.
    1. Skykit warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement and that the Service will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    2. NOTWITHSTANDING THE FOREGOING, THE SOFTWARE, SERVICE, SKYKIT CONTENT AND DOCUMENTATION ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. SKYKIT MAKES NO WARRANTY THAT: (A) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) CUSTOMER CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (D) ANY PRODUCTS, SITES, INFORMATION, OR OTHER MATERIAL WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS OR ANY STANDARD OF QUALITY; OR (E) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SOFTWARE OR THE SERVICE WILL BE CORRECTED. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. NO ADVICE, REPRESENTATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SKYKIT, RESELLER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
16. Limitation of Liability.
    Subject only to the provisions of Section 14(b), neither Skykit, Agosto nor Reseller shall be liable whether in tort (including for negligence or breach of a statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and Skykit’s, Agosto’s and Reseller’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid during the two (2) months immediately preceding the date on which the claim or liability first arose.
17. Term and Termination.
    1. This Agreement shall commence on the date the initial Order is signed or the date this Agreement is electronically accepted by Customer (whichever is first) and continue for the initial subscription term set forth in the Order(“Initial Subscription Term”); thereafter, this Agreement shall automatically renew for successive periods of 12 month periods (“Renewal Period”), unless: (A) either party notifies the other party of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiration of the applicable term, or (B) this Agreement is terminated in accordance with its provisions. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term.”
    2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if: (A) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; (B) an order of a court of competent jurisdiction is made or a resolution is passed for the winding down of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-down order in relation to the other party; (C) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or (D) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way.
    3. Failure of Customer to follow the Google ToS, including, but not limited to, the Acceptable Use Policy, constitutes a material breach of this Agreement. Customer is solely liable for all damages caused by such breach. In the event of such breach, Skykit may immediately suspend its performance of Services and such suspension shall not constitute a breach of the Agreement.
    4. On termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate.
18. Governing Law; Arbitration; Jurisdiction.
    Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the State of Minnesota, regardless of choice of law principles of Minnesota or any other state. The parties agree to exclusively use final, binding arbitration to resolve any claims arising under or related to this Agreement, regardless of the legal theories upon which such claims are based. The parties irrevocably waive the right to resolve any claims arising under or related to this Agreement in any other forum or to demand trial by jury. Any arbitration shall follow the American Arbitration Association Commercial Arbitration Rules and shall occur in Minneapolis, Minnesota. Judgment of award rendered in any arbitration may be entered in any court having jurisdiction.
19. Notices.
    All notices between the parties regarding the Service must be in writing and will be deemed received three (3) business days beyond the date of deposit into the United States Postal Service, or upon written confirmation of receipt of an electronic communication. The parties may act upon any directive, order or request in an electronic communication from and between their authorized representatives. All notices to Skykit shall be sent to Skykit, Attn: Legal, 420 North 5th Street, Suite 400, Minneapolis, MN 55401.
20. Assignment.
    Customer shall not, without the prior written consent of Skykit, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. Skykit may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
21. Survival.
    Articles and Sections 1, 3, 4, 8, 9, 10, 11, 13, 14, 15(b), 16, 18 and 21 shall survive any breach or termination of this Agreement.
22. Entire Agreement.
    This Agreement, all Orders executed hereunder, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.