1. Subscription

Subject to the terms and conditions set forth in this agreement, the Subscriber (“Subscriber”) named in the StratusLIVE Subscription Agreement Order Form (the “Order Form”), which specifies the modules of the Service subscribed to, the term of the subscription, and the subscription price, collectively with this Subscription Agreement Terms of Use and Conditions agreement (the “Agreement”), hereby subscribes to the Service. StratusLIVE grants Subscriber a non-exclusive, revocable, non-transferable (other than as set forth in this Agreement) right to access and use those modules of the Service set forth on the Order Form for its own internal business purposes in accordance with the terms and conditions in this Agreement. Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, or otherwise commercially exploit or make available to any third party the Service in any way; or (ii) access the Service in order to (a) build a competitive product or Service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

2. Intellectual Property Rights

2.1 Ownership. Subscriber acknowledges that all applicable Intellectual Property Rights in the StratusLIVE Service, the Documentation, and any modifications or enhancements to any of the foregoing, are and shall belong to and remain the property of StratusLIVE. Subscriber shall at all times retain ownership of its data, whether entered or transferred into the StratusLIVE Software. StratusLIVE may copy, replicate, move or otherwise manage the Subscriber data as necessary.

2.2 No Work for Hire. Nothing in this Agreement shall be considered as constituting, producing, or resulting in a “work for hire” under the copyright laws of the United States.

2.3 Proprietary Designations. User interfaces, the StratusLIVE Service, web pages, and/or Documentation may contain copyright notices, restrictive legends, or other proprietary designations of StratusLIVE (or “Proprietary Designations”). Subscriber shall not remove, obscure, or modify any such Proprietary Designations nor take any action that would jeopardize any Intellectual Property Rights of StratusLIVE represented by such Proprietary Designations. Subscriber shall not use or register, directly or indirectly, any trademarks, service marks, trade names, or copyrights, which are identical or confusingly similar to any of the Proprietary Designations.

2.4 Reservation of Rights. All rights not expressly granted herein are reserved by StratusLIVE. StratusLIVE shall retain all Intellectual Property Rights in the StratusLIVE Service and related Documentation; no title to any such Intellectual Property Rights is transferred to Subscriber.

3. StratusLIVE Service

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 99.9%, excluding downtime caused by (i) scheduled maintenance performed each Sunday between the hours of 12:00 AM and 12:00 PM 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.

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;

b. Subscriber agrees to comply with this Terms of Use, acceptable use policies, and the Data Privacy Policy of the StratusLIVE Service. The StratusLIVE Service may include hyperlinks to external websites or services that are not under the control of StratusLIVE, and except as expressly provided herein, StratusLIVE assumes no responsibility for such websites or services, or for compliance with any applicable policies or terms of use;

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.

4. Payments

4.1 Fees paid to StratusLIVE. Subscriber shall make payment to StratusLIVE for access to the StratusLIVE Service furnished pursuant to this Agreement at the rates and in the manner provided in the Order Form.

4.2 Time of Payments. Subscriber shall make payments to StratusLIVE in the manner provided in the Order Form.

4.3 Taxes. Subscriber shall be solely liable for all “Taxes” (as defined below) related to this Agreement and all amounts payable to StratusLIVE under this Agreement (other than StratusLIVE’s income taxes). For the purposes of this Section, “Taxes” means all sales, use, V.A.T., tariffs, or other taxes payable in connection with this Agreement now in force or enacted in the future, all of which shall be paid by Subscriber, except for such taxes as are imposed on StratusLIVE’s income. Subscriber is responsible for obtaining and providing to StratusLIVE any certificate of exemption or similar document required to assert an exemption from any liability for Taxes in the United States.

4.4 Any StratusLIVE invoice not paid within 30 days of the invoice date will bear interest at a rate of the greater of (i) 1.5% per month, or (ii) the maximum interest rate allowed by law, assessed against the unpaid balance from the date of invoice until the date of payment.   Subscriber shall also be responsible for, and shall pay on demand, all reasonable attorneys’ fees and other costs incurred by StratusLIVE in collecting any delinquent or past due payments of any kind due StratusLIVE by Subscriber.

5. Warranty

5.1 StratusLIVE Service.

a. StratusLIVE warrants that the StratusLIVE Service furnished under this Agreement will substantially conform to the then current StratusLIVE Documentation with respect thereto, and that such conformance means that under normal use the StratusLIVE Service will be free from a material deviation from the StratusLIVE Documentation. StratusLIVE’s sole liability and obligation in the case of any breach of this warranty is to use commercially reasonable efforts to provide a fix for any such defect. StratusLIVE does not warrant that the functions contained in the StratusLIVE Service will meet Subscriber’s requirements or will operate uninterrupted or error free.

b. Subscriber Remedy. Subscriber’s sole and exclusive remedy and StratusLIVE’s only obligation under this warranty, is to re-perform services provided under this Agreement until they are performed in a good and workmanlike manner. In the event that any services required to be provided by StratusLIVE under this Agreement cannot be provided within a reasonable time after notification, Subscriber’s sole and exclusive remedy is to terminate this Agreement upon written notice to StratusLIVE and receive a refund of any fees paid for the period beginning on the date the problem requiring correction was reported in writing to StratusLIVE.

5.2 Disclaimers and Limitations of Liability

a. Except as expressly provided herein StratusLIVE makes no representations or warranties concerning any StratusLIVE service or documentation except for the express warranties provided in this section 5, and all of the foregoing being provided “as is.” StratusLIVE expressly disclaims all representations, warranties and conditions not expressly provided in this section, whether express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, good title, non-infringement, and those arising in law, from course of dealing, or use of trade. StratusLIVE cannot and does not warrant that the StratusLIVE service or any software will operate without interruption, will be error-free. StratusLIVE does not warrant that its service or documentation will not infringe the proprietary rights (including patent, copyright, trademark, or trade secret rights) of any third party, and Subscriber’s rights and warranties with regard to such matters (if any) are strictly limited to those set forth in this agreement

b. The data transmitted by Subscriber and entered into the StratusLIVE service are the sole responsibility of Subscriber. StratusLIVE makes no warranty or representation to Subscriber regarding the accuracy, reliability, currency, or completeness of any information or data. StratusLIVE shall have no liability to Subscriber or any other person with respect to any damages or losses realized by reliance upon any such information or data. Subscriber acknowledges that it is solely responsible for verifying to its satisfaction the accuracy or completeness of any data transmitted to the StratusLIVE service and on which Subscriber relies in its use of the service. Subscriber is solely responsible for the accuracy and adequacy of its source documents and media.

c. In no event shall StratusLIVE be liable to Subscriber or any third party for lost profits, failure to realize expected savings, inability to use any computer program, loss of data, or for any other special, indirect, consequential or exemplary damages even if StratusLIVE (or such owner) has been advised of or foresees a possibility of any of these damages occurring.

d. No claim, suit, action or cause of action (collectively, “Claim”) may be brought by Subscriber against StratusLIVE arising out of or relating to this Agreement, and/or the StratusLIVE Service, unless Subscriber shall both (i) have given StratusLIVE written notice of such Claim, in reasonable detail and specificity, promptly after the Subscriber becomes aware of such Claim and (ii) Subscriber files such Claim in a court of competent jurisdiction pursuant to Section 9.8 hereof within the earlier to occur of (A) one (1) year following the date on which StratusLIVE furnished or was required to furnish the StratusLIVE Service that is the subject of such Claim or (B) ninety (90) days following the termination of this Agreement.

e. The limitations, exclusions and disclaimers in this Agreement shall apply irrespective of the nature of the cause of action, demand or action by Subscriber, including but not limited to breach of contract, negligence, tort or any other legal theory.

5.3 Force Majeure. Neither party shall be liable to the other party for failures or delays arising out of conditions beyond its reasonable control, including, but not limited to, fire, civil disobedience, delays associated with hardware malfunction, riots, rebellions, storms, electrical failures, acts of God and similar occurrences. Performance times under this Agreement shall be considered extended for a reasonable period of time equivalent to the time lost because of any such failure or delay.

6. Confidentiality

6.1 Mutual Covenant. Each party agrees to keep strictly confidential and not to disclose to any third party any and all Confidential Information disclosed to it by the other party without such disclosing party’s prior approval. Each party shall advise its employees who at any time have access to the disclosing party’s Confidential Information of the obligations assumed hereunder by such receiving party. Each party will in all events exercise no less care and effort in the protection of the Confidential Information of the disclosing party as such receiving party uses to protect its own Confidential Information.

7. Term and Termination

7.1 Term. The term of this Agreement shall commence on the date listed in the Order Form and shall, subject to the provisions of this Section 7, continue for a period identified in the Order Form (the “Initial Term”), and afterward shall automatically renew for one or more one-year periods (“Renewal Terms”) provided that Subscriber is current on payments due to StratusLIVE, or unless and until terminated by either party as of the end of the Initial Term or any applicable one-year Renewal Term, as the case may be, by written notice given to the other party no later than thirty (30) days prior to the end of the Initial Term or such Renewal Term, as the case may be.

7.2 Termination for Breach. Either party may terminate this Agreement by reason of material breach by the other party, by giving the breaching party written notice specifying such material breach and affording the breaching party ten (10) business days from the date of receipt of such notice in which to cure the material breach (the “Cure Period”). Should the breaching party fail to cure the breach within the Cure Period, this Agreement shall be considered terminated as of the last day of the Cure Period. Without limitation, the failure of Subscriber to pay any amounts owing to StratusLIVE under this Agreement shall constitute a material breach of this Agreement. In addition to the foregoing, StratusLIVE will also have the right to terminate this Agreement immediately, with or without notice to Subscriber, in the event of any breach by Subscriber of any of Section 3.8, and either party shall have the right to terminate this Agreement immediately, with or without notice to the other, in the event of any breach of paragraphs 6.1 of this Agreement.

7.3 Continuing Obligations. Termination of this Agreement shall not relieve Subscriber of its obligations or impair any of the protections of StratusLIVE that have arisen or accrued prior to the effective date of termination, including without limitation all provisions hereof relating to protection of Confidential Information and Intellectual Property Rights of StratusLIVE; disclaimers of warranties and limitations of liability; infringement; choice of law and venue; responsibility for attorneys’ fees; indemnification; and Subscriber’s payment obligations (and security therefore) with respect to all amounts that are due or to become due with respect to any Service authorized pursuant to this Agreement by a the Subscriber prior to said termination. Likewise, termination of this Agreement shall not relieve StratusLIVE of its obligations or impair any of the protections of Subscriber hereunder that have arisen or accrued prior to the effective date of termination, including without limitation all provisions hereof relating to protection of Confidential Information of Subscriber; disclaimers of warranties and limitations of liability; infringement; responsibility for attorneys’ fees; and indemnification.

7.4 Effect of Termination. Upon termination of this Agreement for any reason, all access, and other rights granted to Subscriber in or with respect to the StratusLIVE Service, and Documentation shall immediately cease. Upon termination of this Agreement for any reason, (a) all Information shall be the exclusive property of StratusLIVE; (b) Subscriber shall return to StratusLIVE all documents, manuals, and drawings containing any Information or Documentation, or any embodiments or portion thereof, then in the possession of Subscriber at Subscriber’s expense (unless StratusLIVE directs Subscriber to instead destroy any or all such copies). (c) Subscriber shall immediately cease use of the StratusLIVE Service. Upon termination of this Agreement for any reason, all amounts owed by Subscriber to StratusLIVE shall be paid to StratusLIVE immediately, and both parties shall use their commercially reasonable efforts to minimize any negative publicity regarding the other party that could result from such termination.

8. Infringement and Indemnification

8.1 StratusLIVE Infringement and Indemnity. StratusLIVE will defend, indemnify, and hold Subscriber harmless against any third-party claim that the StratusLIVE Service infringes a patent, trademark, copyright or other Intellectual Property Right enforceable in the United States. In this regard, StratusLIVE will pay all costs, damages and attorney’s fees that a court finally awards as a result of any such claim, so long as Subscriber gives StratusLIVE prompt written notice of the claim, cooperates fully with StratusLIVE in its defense, and gives StratusLIVE sole authority to control all legal proceedings, and any related settlement negotiations and decisions. StratusLIVE will not be responsible for any settlement made without its prior written consent. StratusLIVE’s obligations under this Section will not apply if a claim is based on the use of the StratusLIVE Service not in accordance with the StratusLIVE Documentation, or if a claim is based on use of the StratusLIVE Service with any third-party Software, process, or article. If a third party infringement claim with respect to the StratusLIVE Service is sustained in a final judgment from which no further appeal is taken or possible, or if Subscriber’s use of the StratusLIVE Service is enjoined by a court of competent jurisdiction, then StratusLIVE will, in its sole reasonable election and at its expense, either: (a) procure Subscriber’s right to continue to use the StratusLIVE Service in accordance with this Agreement; (b) replace or modify the StratusLIVE Service to make it non-infringing; or (c) if (a) and (b) are not reasonably feasible, terminate this Agreement with respect to the infringing StratusLIVE Service and refund any fees back to Subscriber that have been paid in advance for StratusLIVE Service that cannot be performed per this Agreement. Except as provided in this Section, neither Subscriber nor any other party shall have any remedy against StratusLIVE arising from a claim of actual or alleged infringement of intellectual property rights respecting the StratusLIVE Service.

8.2 Subscriber Indemnity. Subscriber shall defend, indemnify, and hold StratusLIVE harmless against any third party or other claims with respect to Subscriber’s data, Subscriber’s products, and services, Subscriber’s breach of this Agreement, Subscriber’s use of the StratusLIVE Service not in accordance with this Agreement, including, without limitation, any use of the StratusLIVE Service in conjunction with or as part of any other software or any modification thereof not expressly provided for in the Documentation. In this regard, Subscriber will pay all costs, damages and attorney’s fees that a court finally awards as a result of any such claim, so long as StratusLIVE gives Subscriber prompt written notice of the claim, cooperates fully with Subscriber in its defense, and gives Subscriber sole authority to control all legal proceedings, and any related settlement negotiations and decisions. Subscriber will not be responsible for any settlement made without its prior written consent.

9. Miscellaneous

9.1 Entire Agreement. The parties have incorporated all representations, warranties, covenants, commitments, and understandings on which they have relied in entering into this Agreement. This Agreement, with the attachments, (a) constitutes the entire agreement and understanding between the parties with regard to the matters with which it deals, and there are no promises, representations, conditions, provisions, or terms related thereto other than those set forth in this Agreement, and (b) supersedes all previous undertakings, agreements, and representations between the parties, written or oral, with regard to the matters with which it deals. No course of dealing between the parties, no usage of trade, and no outside evidence of any nature shall be used to modify, interpret or supplement any provision of this Agreement.

9.2 Assignment. The benefits and obligations of the parties under this Agreement are personal in nature. This Agreement shall not be assigned without the prior written approval of the other, with the exception that StratusLIVE may assign this Agreement or any of its rights or obligations hereunder, to its Affiliates or to any purchaser of, or other successor to, substantially all the business and assets of StratusLIVE. In addition, StratusLIVE may assign the right to receive payments hereunder to any party. This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

9.3 Severability. In the event that a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable for any reason, such provision or part thereof shall be considered separate from the remaining provisions of this Agreement, which shall remain in full force and effect. Such invalid or unenforceable provision shall be deemed revised to effect, to the fullest extent permitted by law, the intent of the parties as set forth therein.

9.4 Waiver. Any failure of either party to insist upon the performance of a provision of this Agreement shall not constitute a waiver of any other right of either party that the party may have under this Agreement. Any such waiver can only be made in a writing signed by the party against whom enforcement of such waiver is sought.

9.5 Notice. Any notice required or permitted pursuant to this Agreement or any SOW shall be in writing and shall be either (a) hand-delivered, (b) sent by certified mail, return receipt requested, postage pre-paid, (c) sent by a recognized over-night courier service, fee pre-paid, or (d) or sent by facsimile (with the original sent by U.S. mail, postage pre-paid) provided that confirmation of receipt of the facsimile is obtained by the sender. All notices shall be effective upon delivery to the intended recipient at the appropriate address or facsimile number in accordance with this Section 9.5. Each party may change its address or facsimile number for receipt of notices by giving written notice thereof in accordance with this Section 9.5 to the other party. Subject to the foregoing, the addresses and facsimile numbers to which notices may be given under this Agreement are included on the Order Form.

9.6 No Partnership or Joint Venture. The parties shall be independent contractors. Nothing herein shall be construed as creating a relationship of partnership, joint venture, agency, or employment, and neither party shall have the power to obligate or bind the other in any manner whatsoever.

9.7 Subcontractors. StratusLIVE may engage subcontractors to deliver and install the StratusLIVE Service.

9.8 Controlling Law; Venue; Legal Expenses.

a. The interpretation and enforcement of this Agreement shall be governed by the laws of the Commonwealth of Virginia, as it applies to a contract executed, delivered and performed solely in such state, and without regard to any conflict of law provisions.

b. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against either of the parties only in the courts of the Commonwealth of Virginia, City of Norfolk or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Virginia, Norfolk Division, and each of the parties consent to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and hereby irrevocably waives any objection to such jurisdiction and venue. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.

c. In the event any litigation is commenced by either StratusLIVE or Subscriber against the other, the prevailing party will be entitled to recover its reasonable expenses incurred in such litigation, including reasonable attorneys’ fees, from the non-prevailing party.

d. Both parties agree to comply fully with all relevant laws, including the export laws and regulations relating to use of the Service in its place of business, regardless of country or jurisdiction. However, Subscriber’s use of the data supplied by the Service is at Subscriber’s own risk. Without limiting the foregoing, Subscriber will be solely responsible for usage of contact information (e.g., names, phone and facsimile numbers, e-mail addresses and physical addresses) in compliance with relevant laws and regulations. Subscriber may not: (I) send spam or unsolicited messages in violation of relevant laws, including concerning privacy, data protection, telemarketing, the CAN-SPAM Act or other commercial email laws, wireless domain suppression lists, and “Do-Not-Call” lists; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate third party privacy rights; or (iii) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. StratusLIVE also reserves the right to use or disclose information provided if required by law or if StratusLIVE reasonably believes that use or disclosure is necessary to protect StratusLIVE’s’ rights and/or to comply with a judicial proceeding, court order, or legal process.

e. Except for actions for non-payment, breach of confidentiality or indemnities under Section 6, 7 and 8, no action, regardless of form, arising out of or related to this Agreement may be brought by either party more than 2 years after the accrual of the cause of action.