3.1 StratusLIVE Service. Subject to the terms and conditions of this Agreement, Subscriber acknowledges and agrees that access to the StratusLIVE Service is limited to the version or release then currently being provided by StratusLIVE to Subscriber at the time service is requested or authorized access attempted.
3.2 Service Availability. The Service will maintain an average availability of no less than 99.5%, excluding downtime caused by (i) scheduled maintenance performed between the hours of 12:00 AM and 6:00 AM Eastern Time, (ii) emergency maintenance, (iii) force majeure, such as a major outage of the public internet, and (iv) any other events beyond our reasonable control. Downtime is any time in which a computer on the Internet is unable to connect to the StratusLIVE production environment, log into the application, access application data or file attachments or execute reporting jobs due to unavailability of the Service.
3.3 StratusLIVE Support. Our 24×7 web-based support system monitored by our support technicians allows Subscriber the ability to submit support requests to StratusLIVE. Subscriber may identify the severity level of any issue.
3.4 Backup and Replication. StratusLIVE shall provide data storage back up to copy the application server data and Subscriber’s data on a nightly frequency and retain those back-ups in the hosting facility. In the event that Subscriber’s data is lost from Subscriber’s servers, StratusLIVE shall restore the backup data to alternate servers. StratusLIVE shall not be responsible for files that cannot be recovered due to corrupt data, fires or any other disaster or event outside the control of StratusLIVE in accordance with Section 3.2. In addition to the daily backup and disaster recovery service level support provided in the StratusLIVE subscription price, Subscriber can obtain a data replication service on their own.
3.5 No Transfer or Reproduction. Subscriber shall not permit third parties to make use of its access hereunder, nor shall it transfer, network, reproduce, display or otherwise distribute any of the StratusLIVE Service, or Documentation. Subscriber may not transfer any copy of Software or Documentation hereunder to another person or entity outside Subscriber’s immediate organization, on either a permanent or temporary basis, and will allow its personnel access only to the extent necessary for Subscriber’s good faith use of the StratusLIVE Service in compliance to this Agreement.
3.6 Additional Subscriber Responsibilities. While this Agreement is in effect, Subscriber shall:
a. With respect to any non-conformance Subscriber may report, Subscriber will use commercially reasonable efforts to provide StratusLIVE with sufficient documentation, information, assistance, support and, if applicable, to enable StratusLIVE to duplicate the problem, determine whether the problem is or is not due to a defect or error in the StratusLIVE Service, and correct any non-conformance which StratusLIVE is obligated to correct pursuant to this Agreement;
b. Perform all standard user diagnostic, remedial and corrective actions, as described in StratusLIVE’s Documentation provided to Subscriber by StratusLIVE, before requesting assistance from StratusLIVE to remedy a problem; it being understood and agreed that if in any case Subscriber fails to fulfill this duty, StratusLIVE may bill Subscriber on a time and materials basis at StratusLIVE’s then-prevailing rates for its performance of such actions as should have been performed by Subscriber before requesting assistance; and
c. Otherwise provide StratusLIVE with all reasonable cooperation, and access necessary for performance of StratusLIVE’s obligations under this Agreement. StratusLIVE’s obligation to provide services under this Agreement, including without limitation access to the StratusLIVE Service, is conditioned and contingent upon: (i) Subscriber’s fulfillment of its performance obligations and payment when due of all fees and other amounts due to StratusLIVE; (ii) the StratusLIVE Service operation being damaged or adversely affected by any of the events, conditions or circumstances specified in Section 3.7 below, or otherwise herein, as being excluded from StratusLIVE’s responsibility under this Agreement; and (iii) this Agreement being and remaining in full force and effect.
3.7 Miscellaneous Access Exclusions. Subscriber acknowledges and agrees that StratusLIVE has no control over the internet, communication lines, or the conditions under which Subscriber uses the StratusLIVE Service and accordingly the StratusLIVE Service cannot be expected to be error-free or to run without interruption. StratusLIVE will not be responsible for the performance or results that may be obtained by Subscriber’s use of the StratusLIVE Service. Without limiting the generality of the foregoing, any problem or non-conformance in Subscriber’s use or operation of the StratusLIVE Service that is determined by StratusLIVE to be due to or to result in whole or in part from any of the following causes is excluded from coverage under this Agreement: (i) alteration, modification, revision, abuse, misuse, negligence, accident, any third party defect, failure, or malfunction, and maintenance or care by any party other than StratusLIVE; (ii) use of the StratusLIVE Service in combination with software not provided by StratusLIVE, or not expressly authorized in writing by StratusLIVE, for use with the StratusLIVE Service; (iii) malfunction or failure of any hardware, software or other component of Subscriber or any third party; (iv) operation of the StratusLIVE Service in a manner inconsistent with or outside of the StratusLIVE Documentation, or in a hostile environment; or (v) power surges or improper line voltage, or software viruses, or acts of God such as fire, thunderstorm or other natural catastrophes, or other causes within Subscriber’s control or beyond StratusLIVE’s control. StratusLIVE may, in its discretion and if requested by Subscriber, provide assistance to Subscriber in attempting to correct problems due to any of the foregoing causes, at StratusLIVE’s then current time and material rates.
3.8 Access. With respect to the StratusLIVE Service and each item pursuant to this Agreement, the Subscriber hereby agrees as follows:
a. Subscriber agrees to supervise and control its use of the StratusLIVE Service, including without limitation, Subscriber’s compliance with applicable laws, control of access, acceptable use, account permissions, etc. Any right to access and use the StratusLIVE Service and related Documentation shall be non-transferable and nonexclusive, expressly limited to Subscriber’s internal business purposes;
c. The StratusLIVE Service and any related Documentation are the Confidential Information of StratusLIVE, and Subscriber shall keep the same in confidence and shall not use or disclose the same except as permitted by this Agreement.
d. Subscriber agrees to comply with all export and re-export restrictions and regulations of the United States, and shall not to transfer, or authorize the transfer, of all or any part of the StratusLIVE Service, any Software, or any Documentation.