29 - Internet Services Agreement

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9. TAXES Customer shall pay all federal, state, and local taxes, fees, charges, surcharges or similar exactions imposed on the Services and/or products that are the subject of this Master Agreement including but not limited to state and local sales and use taxes, telecommunications taxes, federal and state universal service fund fees and/or state and local regulatory fees to the extent applicable. Further, Vyve shall have the right to recover from Customer the amount of any state or local fees or taxes arising as a result of this Master Agreement that are imposed on Vyve or Vyve's Services, or measured on Vyve's receipts, and any other costs or expenses that Vyve is entitled under applicable law to pass through to or otherwise charge Customer for Customer's use or receipt of the Services. Such fees or taxes shall be invoiced to Customer in the form of a surcharge included on Customer's invoice. Vyve shall be responsible for and shall pay all taxes measured by Vyve's net income. To the extent that a dispute arises as to which Party is liable for fees or taxes under this Master Agreement, Customer shall bear the burden of proof in showing that the fee or tax is imposed upon Vyve's net income. This burden may be satisfied by Customer producing written documentation from the jurisdiction imposing the fee or tax indicating that the fee or tax is based on Vyve's net income. Customer shall be responsible for providing Vyve any and all documentation substantiating a claim for exemption from taxes or fees prior to the date that Services are first provided under this Master Agreement. To the extent such documentation is held invalid for any reason, Customer shall reimburse Vyve for any tax or fee liability including without limitation related interest and penalties arising from such invalid documentation. Customer acknowledges that currently, and from time to time, there is uncertainty about the regulatory classification some of the Services Vyve provides and, consequently, uncertainty about what fees, taxes and surcharges are due from Vyve and/or its customers. Customer agrees that Vyve has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to Customer. Customer hereby waives any claims it may have regarding Vyve's collection or remittance of such fees, taxes and surcharges. Customer understands that it may obtain a list of the fees, taxes and surcharges that Vyve currently collects or passes through by writing to Vyve. 10. PROPRIETARY RIGHTS AND CONFIDENTIALITY a. Vyye's Proprietary Rights. All materials including, but not limited to, any Vyve Equipment (including related firmware), software, data and information provided by Vyve, any identifiers or passwords used to access the Service or otherwise provided by Vyve, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by Vyve to provide the Service (collectively "Vyve Materials") shall remain the sole and exclusive Page 8 of 24