The following terms and conditions govern Netrack, Inc.'s ("Netrack") provision of Netrack services ("Services") to the company or individual ("Customer") as described on the Service Application. The term "Services" is limited to the equipment, facilities, programming or software provided by Netrack to facilitate Netrack Services but does not include special access lines that may be utilized with Netrack Services, or any equipment, facilities, programming or software at the Customer site. If Services are, or become subject to, a tariff filed with the Federal Communications Commission or any other regulatory institution ("Tariff"), the terms and conditions of such Tariff, including rates, shall govern Customer's use of the Services.

1. TERM. The initial Term begins on the day Netrack installs and provides Services and makes them available for Customer use. Unless a longer term is selected and designated on the Service Order, the Term for Services ("Term") will be until the end of the following month, and shall automatically renew for successive one (1) month Terms unless Customer or Netrack notifies the other by thirty (30) days written notice that it does not wish to renew or this agreement is otherwise terminated by Netrack hereunder.

2. RATES. Rates are determined by Netrack and are subject to change. Netrack will provide thirty (30) days written notice of any change in base prices. In the event of increases in base prices, Customer has until (14) days before the date of the effective increase to provide Netrack with a written request to terminate services and incur no termination liability. Otherwise, Customer is responsible for service fees according to the new base prices for Netrack services provided.

3. PAYMENT. Customer agrees to pay all charges incurred. Monthly charges shall be due on the first of each month for that month's service, whether or not an invoice is received. Payment shall be made in U.S. Dollars. A late fee shall be assessed on any overdue amount. Interest charges of 1 3/4 percent per month or the highest rate permitted by law, if lower, will accrue daily on all amounts not paid within thirty (30) days of the date due. All Customer Services may be disconnected without notice if any amounts are not paid prior to delivery of Services. Customer will pay all applicable sales and use taxes, as well as duties or levies, on Services. Customer's Services will not be initiated until Customer has paid the fees for any pro-rated partial period, installation, and the first month Service as indicated by the current fee schedule. If Customer wishes to cancel a Service order before the Service is installed, the Customer must provide notice to Netrack in writing with return receipt, and such notice must be received by Netrack prior to Service installation. When a Customer cancels before initiation, all payments will be refunded.

4. TERMINATION. To terminate Services, Customer must provide Netrack with thirty (30) days prior written notice. Customer will not be liable for termination charges if Services of the same or greater monthly base price are ordered at the same time as the notice of termination is received.

5. RIGHTS AND OBLIGATIONS OF CUSTOMER.

A. Customer shall at its own expense provide all necessary preparations required to comply with Netrack's installation and maintenance specifications, and shall be responsible for the costs of relocation of any equipment or telecommunications circuits once Services are installed. This includes a circuit from a location of Customer's choice to the Netrack point of presence (for Services other than co-location), circuit termination and packet switching equipment to connect Customer systems or networks to Services. For co-location Services, Customer shall provide the computer system to locate at Netrack facility.

B. Customer shall provide information related to Services as requested by Netrack to support and diagnose any problems with Services.

C. Customers shall not resell, nor assist or permit others to resell, Netrack network access services through wide area network, modem, or co-location connections, i.e. activity commonly referred to as Internet Access Provider or Internet Service Provider. Customers may sell or resell information services, i.e. activity commonly referred to as Internet Presence Provider. Such allowed resale services include but are not limited to "web page" hosting, mail forwarding, electronic commerce transactions, and information distribution.

D. Customer shall not nor shall it permit or assist others to use Netrack services for the purpose of unsolicited electronic message distribution or other activities considered an annoyance to network users and commonly referred to as "spamming."

E. Customer shall not nor shall it permit or assist others to abuse or fraudulently use Services, including but not limited to the following:

1. Obtaining or attempting to obtain service by any fraudulent means or device with intent to avoid payment;
2. Accessing, altering, or destroying any information of another Netrack Customer by any fraudulent means or device, or attempting to do so; or
3. Using Services so as to interfere with the use of the Netrack network by other Customers or authorized users, intentionally or not; or in violation of the law or in aid of any unlawful act.

6. EQUIPMENT OR SOFTWARE NOT PROVIDED BY Netrack.

A. Netrack shall not be responsible for the installation, operation or maintenance of equipment or software not provided by Netrack; nor shall Netrack be responsible for the transmission or reception of information by equipment or software not provided by Netrack.

B. Customer shall be responsible for the use and compatibility of equipment or software not provided by Netrack. In the event that Customer uses equipment or software not provided by Netrack that impairs the Customer's use of Services, Customer shall nonetheless be liable for payment for Services. Upon notice from Netrack that the equipment or software not provided by Netrack is causing or is likely to cause hazard, interferences or service obstruction, Customer shall eliminate the likelihood of hazard, interference or service obstruction. Customer shall if necessary pay Netrack to diagnose difficulties caused by equipment or software not provided by Netrack. Netrack will notify Customer by telephone before any such charges are incurred.

C. Netrack shall not be responsible if any changes in Services cause equipment or hardware not provided by Netrack to become obsolete, require modification or alteration, or otherwise affect performance of equipment or hardware not provided by Netrack.

D. Netrack requires these terms and conditions so that Netrack can control the performance of the Netrack network on an end-to-end basis and protect the Netrack network. Netrack's intent is to manage the router on a cooperative basis with Customer for wide area network Services.

1. Netrack reserves the right to allow or refuse the make, model and/or software revision of Customer's provided router to be used as the gateway to Netrack.
2. The Customer will set the initial configuration of the Customer's router interface into the Netrack network as provided by the Netrack.
3. Customer must permit Netrack to access the router's SNMP variables, and Customer must, at Netrack's request, permit one or more Netrack network management systems to be the recipient of SNMP TRAP messages.
4. Customer must offer Netrack read/write access to the router's configuration tables. Either Customer or Netrack can administer the access controls (i.e., login and password) to the router's configuration editor. Netrack will only modify that part of the router's configuration that controls the interface into the Netrack network.

E. Customer is responsible for acquiring and paying the cost of adequate property insurance for all equipment or software not provided by Netrack including such customer equipment or software installed at Netrack's facility.

7. RIGHTS AND OBLIGATIONS OF Netrack.

A. Netrack shall install, operate and maintain Services. Netrack shall not be responsible for cabling, including telephone company lines, that connects equipment not provided by Netrack to the Netrack Services.

B. Netrack warrants that Services will be in good working order and will conform to Netrack's service specifications upon the date installed. The foregoing warranties are in lieu of all other warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.

C. Customer's sole remedy for non-performance of Services pursuant to Netrack's service specifications shall be repair or replacement of Services and those remedies specified in the current Service Level Agreement. Customer waives all other rights and remedies at law or in equity.

D. Netrack shall not be liable, either in contract or in tort, for protection from unauthorized access of Customer's transmission facilities or Customer premise equipment; or for unauthorized access to or alteration, theft or destruction of Customer's data files, programs, procedure or information through accident, fraudulent means or devices, or any other method, even should such access occur as a result of Netrack's negligence.

E. Netrack shall not be liable for claims or damages caused by Customer's fault, negligence or failure to perform Customer's responsibilities; claims against Customer by any other party; any act or omission of any other party furnishing services; or installation or removal of equipment furnished by any service provider, except where caused by the gross negligence of Netrack.

F. Netrack shall not be liable for damages to Customer equipment unless caused by the gross negligence or willful acts of Netrack's officers, employees, agents or contractors for loss through theft or vandalism of Customer equipment on Netrack's premises, and for damages caused by the use of Customer equipment or supplies.

G. Upon default by Customer, Netrack may immediately terminate Services and retake possession of Services (before, during or after action to recover sums hereunder), retain all payments made hereunder, and recover charges and costs owed by Customer as well as any other damages Netrack may have sustained because of Customer's default. "Default" shall mean where Customer becomes subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding; makes an assignment for the benefit of creditors; admits in writing its inability to pay debts when due; or fails within ten (10) days after written notice to remedy any breach of this Agreement.

H. Netrack may interrupt Customer Services immediately after an attempt to notify Customer by telephone at the telephone number Customer contact specified on the Service Application in any event where Netrack has determined Customer is in breach of paragraph 5 of this Agreement. In the event such action is taken by Netrack, Customer Services will be reinstated when Netrack determines the condition has been remedied by Customer.

8. INDEMNITIES. Netrack will be indemnified and saved harmless by the Customer from and against all loss, liability, damage and expense, including reasonable counsel fees, caused by:

1. Fire, flood, theft, or any other casualty to Customer owned equipment physically located at Netrack facilities.
2. Acts or omissions of officers, employees, agents or contractors of Customer that arise out of or are caused by the construction, installation, maintenance, presence, or use or removal of systems, channels, terminal equipment or software not provided by Netrack that are connected to Netrack Services and that result in claims and demands for damages to property or for injury or death to persons including payments made under any Worker's Compensation Law or under any plan for employee's disability or death benefits;
3. Claims for liable, slander, invasion of privacy or infringement of copyright, and invasion and/ or alteration of private records or data arising from any information, data or message transmitted over the network by Customer, and
4. Claims for infringement of patents arising from the use of equipment, software and systems not provided by Netrack in connection with Services.

9. GENERAL.

A. Customer shall not assign or transfer the Services without the prior written consent of Netrack.

B. Netrack will not be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes, or other concealed acts of workmen (whether of Netrack or others), casualties, accidents or other occurrences beyond Netrack's control. Netrack shall notify Customer in the event of any of the foregoing occurrences. Should such occurrence continue for more than sixty (60) days, Netrack or Customer may cancel the Services with no further liability.

C. The provision of Services by Netrack is subject to Netrack's continuing approval of Customer's credit-worthiness. Customer shall furnish financial information as Netrack may from time to time request to determine Customer's credit-worthiness.

D. Any legal action arising out of failure, malfunction or defect in Services shall be brought within one (1) year of the occurrence or is deemed waived. Any and all actions shall be brought in the appropriate court system in the State of Colorado.

E. This Agreement may not be modified except by written amendment by the parties. No agent, employee or representative of Netrack or Customer has authority to bind the parties to any representation or warranty unless such is specifically included in this Agreement, the Service Application, or written amendments thereto.

F. Notice to the parties of disputes arising under this Agreement shall be sent by registered mail to the parties to the administrative address of record for the Customer. All other notices may be sent by regular mail to the administrative address of record for the Customer. Notice to Netrack shall be to:

Netrack
PO Box 17565
Boulder, CO 80308-0565
Attention: Contract Administration

G. All users of Netrack Services are responsible for ensuring their use complies with any policies in effect which may apply to their use. Further, users of Netrack Services are responsible for determining which policies affect their specific use. This may include but is not limited to the National Science Foundation Appropriate Use Policy.

H. Nothing in this Agreement shall be construed to prohibit or restrain the entry by any Customer into any separate contract or agreement with any other Customer or third party on

I. This Agreement shall be governed by the laws of the State of Colorado.

J. Should any part or portion of the Agreement be found invalid, the balance of the provisions shall remain unaffected and shall be enforceable.

K. It is understood and agreed by the parties hereto that this instrument constitutes the entire agreement between the parties. Each party hereby specifically advises the other that any representations inconsistent with the terms and conditions contained herein made by any officer, agent or employee are wholly unauthorized and specifically repudiated.

By submitting this electronic form I certify that I am le gally authorized to enter into this Service Agreement on behalf of the named custome r as designated on the following order form, that the execution of the Service Agre ement will not conflict with or result in a breach of any other agreement to which such c ustomer is a party, and that such customer agrees to comply with the terms and conditions o f Service as outlined in the Service Agreement. The parties have entered into this Service Agreement as of the date the form is submitted.