Subscription Agreement

THIS AGREEMENT: BY CLICKING THE "I HAVE READ AND AGREED" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF ABILITY MANAGER'S SOFTWARE AND SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST UNCHECK THE "CHECKBOX" BUTTON AND MAY NOT USE THE SOFTWARE.

PART A. DEFINITIONS

Affiliate means an entity controlling, controlled by or under common control with a Party.

Customer Data means any data that Customer loads or enters into the Service and all results from processing such data, including compilations and derivative works thereof.

End-User means an individual who uses the Service for immediate or near-immediate consumption, and not for resale or redistribution to others.

Generally Available means a feature is released generally to un-Affiliated commercial customers. Limited beta and pre-release versions are not Generally Available.

Intellectual Property Rights mean any copyright, trademark, patent, trade secret or data privacy right of any third person valid under the National Law or in the Local Jurisdiction.

Order Form means the Order Form for Customer's initial subscription to the Service and any future Order Forms that may be submitted electronically through Company's online ordering system.

Personnel mean Customer employees and contractors who are bound by confidentiality restrictions at least as restrictive as this Agreement provides.

Service means the software and associated Documentation specified in the Order Form and accessed at www.realability.com, or such other URL as the Company may specify.

Subscription Period means the period during which Customer may use particular features of the Service, commencing with the Start Date and expiring on the End Date specified in the applicable Order Form.

User means Personnel who use the Service through User IDs issued under this Agreement.

PART B. SERVICE DESCRIPTION

1. Subscribing to the Service. Customer will subscribe to the Service under one or more Order Forms specifying the features of the Service and the terms and conditions applicable to that Order. Order Forms shall be submitted electronically through Company's online ordering system, email, fax, or delivered via mail. In the event of any conflict between this Agreement and an Order Form, the Order Form shall control, except this Agreement shall govern all issues relating to Intellectual Property Rights, warranty, indemnity and liability issues.

(a) Initial Service. Customer is entering into an initial Order Form upon execution of this Agreement. Company will provide the Service described in the initial Order Form to Customer for the Subscription Period specified therein according to such Order Form and this Agreement.

(b) Additional Service. Additional Order Forms may be entered into by the Parties to subscribe to additional or different features of the Service. Unless designated as replacing a specific outstanding Order Form, a new Order Form will be considered in addition to currently outstanding Order Forms.

2. Permitted Use. Subject to the terms and conditions of this Agreement, Customer is granted the following usage rights for the Service described in the Order Form(s):

(a) Evaluation Use. The Service may includes a fully functional trial period where Customer may load test data and evaluate features of the Service before deciding whether to subscribe. Company will issue Test IDs for this purpose. The testing account permits Customer to deploy the Service in a production environment for a period not to exceed thirty (30) calendar days. Following completion of the test period, Customer may execute an Order Form for a subscription or the testing account will be terminated and all Customer Data deleted from the test area. Use of the Service beyond the test period requires Customer to execute an Order Form.

(b) User Count Subscription.

(i) Usage Rights. Customer Personnel may access and use the Service through User IDs up to the number of Users specified on the Order Form. Customer is responsible for all activity occurring under its User IDs. Customer may request Company to add/drop User IDs as reasonably needed to accommodate changes in Customer workforce. Customer is not entitled to a refund for any unused or unassigned User IDs (Code: UCS). You may not access the Service if you are a direct competitor of Real Ability nor may you provide access to a direct competitor of Real Ability, except with Real Ability’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

(ii) Reservation of Rights. Company expressly reserves all rights in the Service not specifically granted to Customer. It is acknowledged that all right, title and interest in the Service will remain with Company (or third party suppliers, if applicable) and that the Service is licensed on a subscription basis and not "sold" to Customer. Customer expressly reserves all rights in the Customer Data, except the limited right of Company to use the Customer Data in operating the Service features for Customer's benefit. Unless specifically agreed in writing, each Party's exclusive ownership rights extend to any update, adaptation, translation, customization or derivative work thereof.

(iii) Sublicensing Authorization. Customer may sublicense certain designated features of the Service during the applicable Subscription Period to un-Affiliated third parties. Sublicensees shall be subject to legal terms for the Service that are at least as restrictive as this Agreement. Customer is responsible for all activity of its sublicensees with respect to their use of the Service. Unless stated in the Order Form, sublicensees may not further sublicense the Service. Company is authorized to disclose Customer Data, if any, contained in Service features sublicensed by Customer to End-Users, notwithstanding Section 8 ("Confidential & Proprietary Information"). Sublicenses will expire or terminate upon expiration or termination of the applicable Order Form between Company and Customer (Code: SUB).

(iv) Your Responsibilities. You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Company immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Company user or provide false identity information to gain access to or use the Service.

(v) Account Information and Data. Company does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). Customer, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Company will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Company reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Company shall have no obligation to maintain or forward any Customer Data.
3. Transfer of Agreement. Except as expressly stated herein, neither this Agreement, nor any rights or obligations hereunder, may be transferred, assigned, delegated, sublicensed, time-shared, or rented, in whole or in part, by Customer without Company's prior written consent and any attempt to the contrary shall be void and of no legal effect.

4. Term. The term of this Agreement ("Term") shall commence on the Effective Date and continue until all outstanding Subscription Periods under Order Forms for the Service expire or are terminated in accordance with Section 13 ("Termination"). Expiration or termination of one Order Form shall not affect any other Order Form, unless the Agreement as a whole is terminated under Section 13 ("Termination").

5. Acceptance. The Service features described in an Order Form shall be deemed accepted by Customer unless Customer notifies Company in writing of a material defect in the Service within ten (10) business days after the Start Date. If material defects are identified, Company shall have a reasonable opportunity to correct them, or provide a functional workaround.

6. Support Service. Customer may receive the following Support Service:

(a) Support. Customer's designated representative may use call-in technical support during normal published hours. Service requests transmitted during non-business hours shall be considered received by the Company on the next business day. Trouble Reports shall be communicated by telephone or email and shall provide sufficient information to enable Company to replicate and diagnose the reported problem. If necessary and subject to normal security procedures, Company support staff may access Customer Data on the Service to diagnose and correct reported errors. Technical support is not included in the subscription fee and may be subject to Company's standard hourly rate.

(b) Service Upgrades. Customer shall receive Generally Available Updates, Versions, and Releases for the Service, as designated by the Company in its discretion, and at no additional charge.

(c) Certain Conditions. Company shall not be obligated to provide Support Service if: (i) the reported error was caused by changes in Service code, program parameters or other user adjustable features; (ii) the error results from operator error, errors in Customer Data or software not supplied by Company; (iii) the error is in a prior release that was corrected through issuance of an Upgrade that Customer has failed to implement, or (iv) the Customer has failed to pay any required fee or is otherwise in default of this Agreement. To the extent, if any, that the Service is third party software (such as operating systems or third party data or applications), it is acknowledged that Company's performance may be impacted by the level of support provided by such third parties. Support Service does not include preparation of Customer Data, configuration or customization of Service features needed to function in Customer's production environment.

(d) Training. In consideration of Customer's payment of the published Training Fee, Customer Personnel may attend any training sessions provided by Company in the use and operation of the Service. Training will be conducted on-site at Customer's location. Customer will reimburse Company the reasonable travel costs of Company trainers.

7. Fees & Payment.

(a) Subscription Fees. Unless otherwise expressly stated on an Order Form, Customer will pay a one-time Sign-Up Fee plus Monthly Fees for the Service, each month in advance. Subscription Fees are invoiced starting on date(s) specified in the Order Form. Invoices are payable net Thirty (30) days. All prices are stated and payable in U.S. Dollars. Customer may select prices available on the Effective Date of this Agreement for any Order Form placed within one (1) year thereafter. Prices shall be updated by giving written notice at least thirty (30) days in advance.

(b) Data Storage & Backup Fees. The price of the Service includes up to ten (10) gigabytes of online data storage and weekly data backups. Company shall endeavor to notify Customer when its usage approaches ninety (90) percent of the allotted storage space. Any additional data storage shall be at Company's applicable rates hereunder or as otherwise specified in an Order Form.

(c) Late Payment. Customer may not withhold or "setoff" any amounts due hereunder. Company reserves the right to suspend Service until all past due amounts are paid in full after giving Customer advance written notice and an opportunity to cure as specified in Section 12 ("Notices") and Section 13 ("Termination"). Any late payment shall be subject to any costs of collection (including legal fees of 17.5% pre-filing, or 35% if formal proceedings are filed) and shall bear interest at the rate of one (1) percent per month or fraction thereof until paid.

(d) Certain Taxes. Prices quoted do not include and Customer shall pay, indemnify and hold Company harmless from all sales/use, gross receipts, value-added, GST, personal property or other tax (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Company.

8. Confidential & Proprietary Information. For purposes of this Section, a Party receiving Confidential & Proprietary Information (as defined below) shall be the "Recipient" and the Party disclosing such information shall be the "Discloser".

(a) Acknowledgment. Customer hereby acknowledges that the Service (including any Documentation, source code, translations, compilations, partial copies and derivative works) contains confidential and proprietary information belonging exclusively to Company (or its designated third party supplier), and Company hereby acknowledges that Customer Data contains confidential and proprietary information belonging exclusively to Customer or relating to its affairs (in each case, "Confidential & Proprietary Information"). Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential & Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it.

(b) Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not use, commercialize or disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel having a "need to know" (and who themselves are bound by similar nondisclosure restrictions), and to such other recipients as the Discloser may approve in writing; provided that all such recipients shall have first executed a confidentiality agreement in a form acceptable to Discloser. Recipient shall not: (i) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend, or (ii) decompile, disassemble or reverse engineer the Confidential & Proprietary Information (and any information derived in violation of such covenant shall automatically be deemed Confidential & Proprietary Information owned exclusively by the Discloser). Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information, but in no event shall less than due diligence and care be exercised. Upon termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof.

(c) Injunctive Relief. Recipient acknowledges that violation of the provisions of this Section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

9. Warranties.

(a) Warranties. Company is providing all Services, Support and other deliverables hereunder strictly on an "as is" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. Customer represents and warrants that it owns or has all requisite rights to use the Customer Data with the Service, and to authorize Company to process Customer Data as contemplated herein, and that such use will not infringe or misappropriate any Intellectual Property Rights.

(b) Anti-Virus Checking. Company represents that it will prior to making any Service feature Generally Available scan it with commercially available anti-virus software and shall use reasonable efforts to remove viruses capable of being detected with such software.

(c) Warranty Disclaimer. THE COMPANY HEREBY DISCLAIMS WITH RESPECT TO ALL SERVICES, SUPPORT AND OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE.

(d) Not Fault Tolerant. THE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE.

10. Mutual Indemnity.

(a) By Company. Company shall defend, indemnify and hold Customer harmless from any claim (including attorney fees) that Company violated Section 8 ("Confidentiality & Proprietary Information") or that the Service in the form provided violates or infringes any Intellectual Property Rights; provided that Company is given prompt notice of the claim and sole control over the defense and any settlement thereof (except Company shall not enter into any settlement prejudicial to Customer without Customer's consent). Company is not obligated under this Section to the extent any claim arises from Customer's breach of this Agreement or use of the Service in combination with any software, data, process or technology not supplied by Company (where there would be no claim, but for such combination) or unless Customer provides Company its reasonable cooperation at Company's expense.

(b) By Customer. Customer shall defend, indemnify and hold Company harmless from any claim (including attorney fees) that Customer violated Section 8 ("Confidentiality & Proprietary Information") or that Customer Data or Customer's use of the Service harms any person, violates any law or infringes any Intellectual Property Rights; provided that Customer is given prompt notice of the claim and sole control over the defense and any settlement of any third party claim (except Customer shall not enter into any settlement prejudicial to Company without Company's consent). Customer is not obligated under this Section to the extent any claim arises from Company's breach of this Agreement or use of Customer Data in combination with any software, data, process or technology not supplied by Customer (where there would be no claim, but for such combination) or unless Company provides Customer its reasonable cooperation at Customer's expense.

11. Limitation of Remedies & Liabilities. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk:

(a) Remedies. Except for indemnified claims under Section 10 ("Mutual Indemnity") or rights or indemnities expressly stated under other provisions hereof, Customer's sole and exclusive remedies for Company's default hereunder shall be (i) to obtain the repair, replacement or correction of the defective Service to the extent, if any, warranted under Section 9 ("Warranties") or, (ii) if Company reasonably determines that such remedy is not economically or technically feasible, to obtain an equitable partial or full refund of amounts paid with respect to the defective Service. It is agreed that these remedies shall be exclusive even if they fail of their essential purpose.

(b) Liabilities. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED BY THIS AGREEMENT, NEITHER PARTY IS LIABLE FOR DIRECT DAMAGES EXCEEDING ONE (1) YEAR'S SUBSCRIPTION FEES PAYABLE UNDER THE ORDER FORM AT ISSUE, NOR FOR ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THIS AGREEMENT. THIS LIMITATION IS INDEPENDENT OF REMEDY LIMITS.

(c) Relationship to End-Users. This Agreement governs the relationship between Company and Customer. End-Users shall not be considered third party beneficiaries of this Agreement and Customer shall indemnify and hold Company harmless from any End-User claim to the extent it materially enlarges Company's liability from that existing hereunder had the Service not been used by End-Users.

12. Notices. Notices sent to either Party shall be effective when delivered in person or transmitted by fax machine, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the Official Contact designated on the signature page hereof. A facsimile of this Agreement and notices generated in good form by a fax machine (as well as a photocopy thereof) shall be treated as "original" documents admissible into evidence unless a document's authenticity is genuinely placed in question.

13. Termination.

(a) Generally. Either Party may, in addition to other relief, suspend or terminate an Order Form or this Agreement if the other Party breaches any material provision hereof and fails within thirty (30) days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.

(b) Survival. Termination shall have no effect on the Parties' rights or obligations under Section 8 ("Confidential & Proprietary Information"), rights or obligations under Section 9 ("Warranties"), Section 10 ("Mutual Indemnity"), Section 11 ("Limitation of Remedies & Liabilities"), Section 15 ("Independent Contractor Status"), Section 17 ("Insurance, Indemnity"), Section 18 ("Compliance with Export Regulations"), any payment obligations or any provision which by its nature should survive. Upon termination or expiration of the Term, Company shall make a final backup of Customer Data and provide the backup media to Customer at actual cost of duplication.

14. Disputes, Choice of Law. Except for certain emergency judicial relief authorized under Section 8 (c) ("Injunctive Relief"), all disputes arising out of or relating to this Agreement or the subject matter thereof shall be submitted to a single arbitrator who shall be a former judge or attorney having experience in similar disputes. The proceedings shall be conducted pursuant to the Streamlined Arbitration Rules and Procedures and the U.S. Arbitration Act, 9 U.S.C. Sec. 1 et seq. ("Arbitration Act"). The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the Parties and enforceable in any court of competent jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES ("NATIONAL LAW") AND CALIFORNIA ("LOCAL JURISDICTION"), WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. THE PARTIES WILL INITIATE ANY DISPUTE RESOLUTION PROCEEDING IN SUCH LOCAL JURISDICTION AND IRREVOCABLY CONSENT TO EXCLUSIVE PERSONAL JURISDICTION AND VENUE THEREIN. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this Agreement. Any claim against Company will be brought within one (1) year after it arose, or be barred.

15. Independent Contractor Status. Each Party and its people are independent contractors in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, worker's compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements now existing or hereafter enacted and attributable to themselves and their respective people.

16. Security, No Conflicts. Each Party agrees to inform the other of any information made available to the other Party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each Party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the Party or create any conflict of interest and shall promptly notify the other Party if any such conflict arises during the Term.

17. Insurance, Indemnity. Each Party shall maintain adequate insurance protection covering its respective activities hereunder, including coverage for statutory worker's compensation, comprehensive general liability for bodily injury and tangible property damage, as well as adequate coverage for vehicles. Each Party shall indemnify and hold the other harmless from liability for bodily injury, death and tangible property damage resulting from the negligent or willfully injurious acts or omissions of its officers, agents, employees or representatives acting within the scope of their work.

18. Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Company harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws (e.g., in the U.S., the Bureau of Export Administration of the U.S. Department of Commerce). This provision and the assurances made herein shall survive termination of this Agreement.

19. European Union Residents. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Service is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Service.

20. Miscellaneous. This document and the accompanying Exhibits constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by the Party against whom enforcement is sought. Except as specifically permitted herein, neither this Agreement nor any rights or obligations hereunder may be transferred or assigned by Customer without Company's prior written consent and any attempt to the contrary shall be void. Company reserves all rights not specifically granted herein. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect.

21. Questions or Additional Information. If you have questions regarding this Agreement or wish to obtain additional information, please send an email to info@realability.com.