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Master Services Agreement

This Master Services Agreement (the “Agreement”) is made between User (“Client") and Skyway Acquisition Solutions, LLC at P.O. Box 49294, Saint Petersburg, FL, 33743. Throughout this Agreement, the terms "you" and "your" refer to the Client named above, the terms "we", "our", and “Skyway” refer to Skyway Acquisition Solutions, and the term "Parties" refers to both Client and Skyway Acquisition Solutions together.

  1. This Agreement confirms the general business principles governing Skyway’s involvement in projects when engaged by Client, as well as any documents, reports, software, processes, training modules or products acquired from Skyway by Client. As part of our service, we will provide you with a written agreement, and/or statement of work (the “Proposal”) that will provide details of the project or product, including deliverables, assumptions, staffing, time and fee estimates, and pricing. The terms and conditions of this Agreement are incorporated by reference into and made a part of each Proposal, but the provisions of this Agreement will prevail over any inconsistent Proposal provision.
  2. Our estimated time for completion and estimated fees are based, in part, on our experience with similar projects and on the project scope, assumptions and deliverables discussed in each Proposal. You agree to timely perform all tasks for which you are responsible as set forth in the Proposal. You acknowledge that our performance is dependent upon the timely and effective satisfaction of your responsibilities, as well as your timely decisions and approvals, upon which we will rely. To the extent that the assumptions described in the Proposal are not met or turn out to be inaccurate, or there is a material delay in your making necessary decisions or performing your responsibilities, the cost and delivery schedule of the project or product may be impacted. If these circumstances arise that would cause our level of involvement to change significantly from what we outlined in our Proposal, we will notify you before we incur additional time or cost. If this occurs, you agree to negotiate in good faith with us to mutually develop a revised completion date and/or amount of the fees.
  3. In connection with each project or product order, each of us may have access to proprietary information, trade secrets, and/or other confidential information made available by the other, and each of us agrees to protect that confidential information in the same manner as we would protect our own confidential information of like kind, and in any case with no less than a commercially reasonable degree of care; provided, however, that Skyway may disclose such confidential information to the extent required by legal process, subpoena, warrant or court order, and Client shall be required to pay all costs and expenses (including reasonable attorneys’ fees) incurred by Skyway for any defense with regard to permitted disclosures hereunder. Each party understands that confidential information of the other includes designs, creations, improvements, works of authorship, processes, know-how, techniques, ideas, discoveries, and/or developments previously created and utilized by such party, whether or not copyrightable, trademarkable or patentable, hereinafter referred to as intellectual property. All rights, title and interest in such intellectual property, including the right to reproduce copies, to prepare derivative works, and to distribute copies to the public by sale or other transfer of ownership shall remain with the originating party, and the other party shall not hold any right, title or interest in such intellectual property.
  4. Client and Skyway will maintain joint ownership of all deliverables for the projects, and neither party will be obligated to pay the other for future use of the deliverables, except as specifically provided for in this Agreement or the Proposal(s). Similar to Section 3 above, any deliverables that result from Skyway’s efforts may create proprietary data or information that is confidential to either or both of us. Each of us agrees to protect this newly created confidential and proprietary information in the same manner as we would protect any other confidential information of like kind in Section 3. Subject to these mutual obligations of confidentiality, Skyway will be free to use the concepts, techniques, know-how, work products, and deliverables used in connection with the projects and will continue to be free to perform similar services for our other clients using the knowledge, skills and experience obtained during the projects provided the use of same will not result in the release of proprietary or confidential information.
  5. Skyway may analyze the general financial structure of the Client to make recommendations on Small Business status, HUBZone status, or other socioeconomic programs. Although we may consult with certified public accountants in conjunction with your project and our own financial structure, Skyway is not a public accounting firm. We do not undertake to, and will not, provide any opinion or form of assurance on any financial statements which are generated in connection with the products or services we provide. Accordingly, we do not undertake to make inquiries or perform other procedures to verify, corroborate, or review information supplied by you. Furthermore, any such financial statements may contain departures from generally accepted accounting principles or any other comprehensive basis of accounting, and cannot be relied upon to disclose errors, irregularities, or illegal acts, including fraud or defalcations that may exist. Although Skyway teams with consultants and companies who do provide guidance on federal accounting regulations, we will not attempt to audit, nor provide any assurance or certification regarding compliance of any aspects of your business with regards to any such requirements. Nor will Skyway attempt to audit or provide any assurance or certification regarding compliance of any such financial statements or any aspect of your business with the financial accounting standards and other requirements of the United States Securities Exchange Commission or other federal or state regulatory authority.
  6. RFP Score users: The RFP Score is a proprietary product of Skyway Acquisition Solutions, LLC. By using this survey to score RFPs, the user hereby agrees not to replicate, copy, or attempt to duplicate the RFP Score. The name RFP Score; and the RFP Score; process in this survey are the proprietary and copyrighted material of Skyway Acquisition Solutions, LLC. By using this survey, the user agrees to protect them as such.
    The information provided will be used to help assess your opportunity. Personally identifiable information will be used only for internal purposes. Any other data collected may be used in aggregate to provide further fidelity into your overall RFP Score. No identifying information will be released at any time.
  7. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SKYWAY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, WORKMANLIKE MANNER, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
  8. To the maximum extent permitted by law, Skyway shall not be liable to you or any other person for any special, incidental, indirect, consequential, exemplary or punitive damages, whether in an action of contract, strict or statutory liability, tort (including negligence) or other theory of liability (including breach of warranty), arising out of or in any way connected with this Agreement or the use of or inability to use any products, services, information or results provided under this Agreement, even if Skyway has been advised of the possibility of such damages, including, but not being limited to, damages for loss of use, delay, loss of business, loss of revenue, profits or savings, business interruption loss, loss or corruption of information or data, loss of privacy, loss of goodwill, and liability to third parties.
  9. In no event will Skyway’s liability arising out of or in any manner connected with or relating to this Agreement and your use or inability to use any of the products or services provided under this Agreement exceed, in the aggregate, the total fees paid to us by you under this Agreement for the one hundred eighty (180) day period immediately preceding the act, event or omission serving as the basis for the claim giving rise to such liability or obligation.
  10. The limitations and exclusions set forth above apply notwithstanding the failure of essential purpose of any remedy or any breach or default by Skyway.
  11. The Parties agree to indemnify, protect, defend and hold harmless the other from and against any and all claims, demands or liability resulting from (a) bodily injury to any person (including injury resulting in death) or damage to property arising under this Agreement, provided such injury or property damage is due to the negligent or willful acts or omissions of the party’s employees or agents, (b) any act or omission constituting negligence or willful misconduct by the party, (c) any third-party claim arising out of the performance of our services or your use of the products and services provided under this Agreement, (d) the party’s breach of its obligations under this Agreement, or (e) any errors and/or omissions committed by Skyway that resulted from information that you or a third party failed to disclose.
  12. Except for the obligation to make payments due hereunder, neither party will be liable for any delays or failures to perform due to causes beyond such party’s commercially reasonable control.
  13. To allow us to manage our participation in the projects most effectively, Skyway reserves the right, in our sole discretion, to determine which personnel will perform the work, although we will attempt to honor your requests for specific individuals.
  14. This Agreement shall commence as of the Effective Date and shall continue until terminated in accordance with Section 14 or 15. For Skyway Connection© members, monthly membership shall commence effective on the receipt date of initial payment, and continue as long as monthly membership payments are received on time.
  15. Either party may terminate this Agreement, effective upon Notice (as defined in Section 32) to the other party (the “Defaulting Party”), if the Defaulting Party:
    1. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within fourteen (14) days after receipt of Notice (as defined in Section 32) of such breach; or
    2. becomes bankrupt or insolvent or enters into any arrangement with its creditors or takes or suffers any similar actions in consequence of a debt.
    3. for Skyway Connection© members, fails to make the monthly membership payment on or before the 1st of each month. In this case, termination is effective immediately, and no further written notification is required. Payment received after the 1st of the month may be considered a new membership term, and not a continuation of an existing membership.  Membership re-instatements due to late payment are subject to a $100 administration fee.
  16. Either party may terminate this Agreement for any reason by providing not less than thirty (30) days prior Notice (as defined in Section 32). You agree to pay us for our reasonable fees and expenses incurred or due under this Agreement and each proposal through the effective date of termination. Notwithstanding the foregoing, for any services or managed services Proposals or agreements, Client acknowledges that such agreements may not be terminated under this Section but shall instead be controlled by the term and termination provisions stipulated in any such agreement.
  17. Upon the termination of this Agreement for any reason: Skyway may retain one (1) copy of all details of clients’ files and any other Client confidential information, for its records; provided, however, that such copies shall be maintained as confidential information.
  18. Any termination of this Agreement for any reason shall not affect any accrued right or liabilities of either party, not the coming into force, or the continuation in force, of any provision within the following Sections of this Agreement: Sections 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 20, 24, 25, 26, 28, 33, 34, 36 and 38.
  19. Expenses may include, but are not limited to: travel costs (mileage driven by our consultants in getting to your location which exceeds their normal commute within the Tampa Bay, FL area, parking, tolls, airfare, etc.), out-of-town costs (hotels, meal allowances, long distance, etc.), and other out-of-pocket costs (conference calls, duplicating, courier fees, etc.) as incurred and agreed to in the individual Proposal.
  20. If travel cost arrangements are not specified in individual Proposal(s), all travel time to and from your site(s) will be billed at half time per consultant (e.g., for each two hours incurred traveling, you will be billed for one hour at the rate stated in the Proposal) if your location is greater than 25 miles from the location of the Skyway team member who is supporting you.
  21. Based on the scope outlined in each Proposal, appropriate project retainers and project billings for fees and out-of-pocket expenses will be agreed upon. Following any up front retainer payments, billings are typically performed monthly. Payment of all billing amounts becomes due and payable within twenty (20) days of invoice date (Net 20). Any unpaid amount after forty-five (45) days will bear and accrue interest at the rate of one and one-half percent (1.5%) per month (or such lesser rate as is required to comply with applicable law) until paid in full. If it becomes necessary for Skyway to seek collection of any amounts due and owing, you will be responsible and liable for any and all reasonable collection costs, including reasonable attorneys’ fees, even if a collection suit is not instituted. In addition, Skyway reserves the right, following Notice (as defined in Section 32), to suspend or discontinue its performance or provision of products and services hereunder for your lack or delinquency of payment of any amounts due, or for any other material failure or breach of this Agreement including your performance under all significant project assumptions.
    1. Skyway Connection© Memberships are billed monthly, and due by the on or before the 1st of each month. Non-payment constitutes an effective termination of Skyway Connection© membership. Client may reinstate an account at any time, but an interruption in service may result in an update of any locked-in rates.
  22. If any amount remains unpaid for services, Client grants to Skyway a lien and security interest in such product, and the proceeds of such product, as collateral security for the amounts owed by Client to Skyway, and may perfect its security interest by filing an appropriate financing statement under the Uniform Commercial Code without Client’s signature. Skyway shall have all rights and remedies of a secured party under the Uniform Commercial Code.
  23. You acknowledge that you have independently selected the consulting and training services of Skyway based on your own due diligence and have not relied upon any representations of Skyway. You accept the products upon delivery of the product (in electronic or paper form), and you understand and agree that all sales and other transactions are final. Skyway has no obligation to return or refund all or any portion of any payments made by you hereunder for delivered products. For all services and for Proposal Lifecycle Support in particular, the Client agrees that Skyway cannot guarantee that the Client will win any particular federal contract. The result of the proposal process does not relieve the Client from the responsibility of paying the services of Skyway in accordance with each Proposal.
  24. Client, at its own expense, shall comply with any laws or regulations, including trade restrictions and embargos, relating to products acquired and shall procure all licenses and pay all fees and other charges required thereby. Client shall limit its actions to conform to applicable laws and regulations regarding the use, licensing, import, export or re-export of the products, including regulations of the U.S. Department of Commerce and/or the U.S. State Department, to the extent applicable. Client certifies that it will comply with the Federal Acquisition Regulation (FAR).
  25. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder, excluding any taxes attributable to the net income or operations of Skyway.
  26. Any and all of Client’s public releases, advertising, other marketing materials that use, mention or refer to Skyway shall be subject to Skyway’s prior written approval, which approval shall not be unreasonably withheld, except for factual disclosures required to be made pursuant to securities or other applicable laws.
  27. During the Term of this Agreement and for a period of twelve (12) months thereafter, neither party shall hire, employ, recruit, solicit or induce, or attempt to induce any contractor or employee to terminate their contract work or relationship with or otherwise cease their relationship with, the other party. The provisions of this Section shall not restrict the right of either party to: (a) solicit or recruit generally in the media; and (b) hire any personnel of such other party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited, recruited and/or hired by the other party. If either party breaches this covenant by employing or soliciting the employment of any of the other party’s personnel, then the breaching party agrees to pay to the other party, an amount equal to the aggregate compensation paid to such personnel during the preceding twelve months, as liquidated damages, for each and every such occurrence of such breach. Skyway’s agreements with our individual consultants contain the same twelve (12) month separation between being a Skyway teammember and working for any of our current, previous or prospective clients.
  28. Skyway retains the right to perform the same or similar type of services for third parties during the Term of this Agreement.
  29. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
  30. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  31. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  32. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  33. All notice (“Notice”) provided for in this Agreement shall be given in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notice shall be effective when either served by electronic mail to the following addresses kevin@skywayacquisition.com (if Notice is provided to Skyway) or (if Notice is provided to the Client), hand delivery, express overnight courier service, or by registered or certified mail, return receipt requested, addressed to the Parties at their respective addresses.
  34. This Agreement shall be construed and governed by the internal laws of the State of Florida (except that any law that would cause the application of the substantive or procedural law of any other state shall not apply). Each party irrevocably agrees that any legal action, suit, or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in the appropriate state or federal district court sitting in Pinellas County, Florida.
  35. Prior to initiating any legal action, the initiating party shall give the other party sixty (60) days Notice of its intent to file an action. During such notice period, the Parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement through arbitration prior to seeking a court action. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to this Agreement, shall finally be settled in a court of competent jurisdiction as set forth herein. Should either of us institute legal action concerning this Agreement, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.
  36. This Agreement and each Proposal has been drafted by the Parties. The terms and conditions of this Agreement or any Proposal shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties by reason of any presumption.
  37. EACH PARTY, AS A CONDITION OF IT’S RIGHT TO ENFORCE OR DEFEND ANY RIGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT, WAIVES ANY RIGHT TO A TRIAL BY JURY AND AGREES THAT ANY ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
  38. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns, except that Client may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Skyway, and any purported assignment shall be void.
  39. This Agreement and the Proposals set forth the complete agreement between us and supersede all prior agreements or understandings relating to any project or product. No amendment, alteration, or modification of this Agreement will be valid or binding upon either party except when signed by both of us in writing.
  40. The Parties may execute this Agreement and any Proposal, including by means of facsimile signature pages, in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
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