Tariva, Inc. Application Hosting Service Subscription Agreement PLEASE UNDERSTAND! BY CLICKING ON "SUBSCRIBE BUTTON" BELOW AND/OR ACCESSING ANY PART OF THE TARIVA APPLICATION HOSTING SERVICE ("TARIVA AHS", OR THE "SERVICE") YOU REPRESENT THAT YOU ARE EITHER (1) THE REPRESENTATIVE OF A COMPANY, WITH THE REQUISITE CORPORATE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY AND NO OTHER CONSENT, APPROVAL, OR AUTHORITY IS NECESSARY OR REQUIRED TO BIND THE COMPANY TO ALL OF THE TERMS AND CONDITIONS HEREOF OR (2) AN INDIVIDUAL, OVER THE AGE OF 18 OR HAVE OBTAINED YOUR PARENT'S CONSENT TO REGISTER FOR THE SERVICE. YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS APPLICATION HOSTING SERVICE SUBSCRIPTION AGREEMENT (THE "SUBSCRIPTION AGREEMENT" OR "AGREEMENT") AND CONSENT, EITHER ON BEHALF OF THE COMPANY THAT YOU REPRESENT OR ON YOUR OWN BEHALF, TO BE BOUND BY AND BECOME A PARTY TO THIS SUBSCRIPTION AGREEMENT. IF YOU ARE DEEMED TO HAVE ORDERED THE SERVICE, THE ACCEPTANCE OF TARIVA ("TARIVA") IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY TARIVA, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. Terms and Conditions 1. The Service The Service consists of a browser interface, data encryption, data transmission, data access (as available) and, as applicable, synchronization software and data storage. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, Internet Service Providers [ISP's], telecommunications) incurred while using the Service. The Executable Software Program(s) provided by Tariva, whether free of charge or for a monthly fee, singularly and/or collectively represent exclusive and restricted software and are referred to as "Proprietary Software". The Proprietary Software comprises Tariva's iCRM® application as well as any ancillary or enabling programs including the associated relational database. The Proprietary Software, in machine-readable form including any subsequent updates and any part thereof, may be installed and used on only the number of computers for which Licensee has been granted or has purchased a License. Such authorized number of users may copy it, in whole or in part with the proper inclusion of copyright and any proprietary notices but only for backup and archival purposes.Tariva makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Service. Tariva reserves the right to change the Service or the terms and conditions of this Subscription Agreement at any time without notice. 2. Use of Proprietary Software If you have entered into this Agreement in your capacity as an authorized representative of a company ("Company") and in conjunction with and subject solely to the terms and conditions of this Subscription Agreement, Tariva grants you and each person accessing the Service by means of a valid Account established for the Company by you in your representative capacity, an individual, personal, non-sublicensable, non-exclusive and non-transferable license ("License"). If you have entered into this Agreement in your capacity as an individual and in conjunction with and subject solely to the terms and conditions of this Subscription Agreement, Tariva grants you an individual, personal, non-sublicensable, non-exclusive and non-transferable license ("License"). As a Licensee, your License entitles you to use Tariva's Proprietary Software in object code form only and only in accordance with the applicable end user documentation, if any. Neither the Company, nor any person accessing the Service by means of the Company's Account, nor you (if you are entering into this Agreement in your individual capacity) will directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code or underlying ideas or algorithms of the Proprietary Software; (b) modify, translate or create derivative works based on the Proprietary Software or any parts thereof; (c) rent, lease, loan, distribute, sell, resell, sublicense, assign or otherwise transfer rights to the Proprietary Software or any part thereof; (d) use the Proprietary Software for timesharing or service bureau purposes or otherwise make available to or for the benefit of a third party whether or not compensated; or (e) remove any proprietary notices or labels on the Proprietary Software. As between the Parties, you acknowledge that Tariva retains exclusive worldwide ownership of all versions of its Proprietary Software, any portions or copies thereof and all rights therein. No title to or ownership of the Proprietary Software or any parts thereof is transferred to the Licensee. The Proprietary Software is licensed, not sold, to the Licensee for use only under the terms of this Agreement and Tariva reserves all rights not expressly granted to the Licensee. Any attempt to transfer any of the rights, duties or obligations hereunder, without the express written authorization of Tariva, will void this Agreement and the Licenses issued hereunder. Upon termination of this Subscription Agreement for any reason, this License will terminate and you and any user accessing the Service by means of the Company's Account, as applicable, will cease to use or have access to the Proprietary Software. THE PROPRIETARY SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND IS SUBJECT TO THE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY FOUND IN THIS SUBSCRIPTION AGREEMENT.3. Restrictions and Policies You and, as applicable, each user accessing the Service by means of an Account established by you, will not use the Service in any way for spamming, chain letters, junk mail or distribution lists to any person who has not given specific permission to be included in such. You agree not to transmit (or if applicable, to permit any user accessing the Service by means of an Account established by you to transmit) through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind. You will only use the Service for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include, but not necessarily be limited to, storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site or making direct threats of physical harm. You hereby agree to defend and indemnify Tariva, Inc. against any claim or action that arises from your use of the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein. It is understood and agreed that if this Agreement is entered into on behalf of a company, the term "you" as used in the foregoing sentence shall apply jointly and severally to that company and to each user accessing the Service by means of an account (hereinafter "Account") established in the name of that company. It is Tariva's policy to respect the privacy of its customers. Nevertheless, Tariva reserves the right to access and disclose any information, data, graphics, video, sound, files and other content created by, provided by or accessed by you ("Content") in order to comply with applicable laws and lawful government requests, to operate its business properly, or to protect its customers or itself. This may also include disclosing licensees' names and other registration and identification information. Tariva reserves the right in its sole discretion, but will not be obligated, to remove any Content from its system. Tariva will fully cooperate with law enforcement authorities in investigating suspected lawbreakers, and reserves the right to report to such authorities any suspect activity of which it becomes aware. Tariva reserves the right to contact users of the Service via e-mail or other means to inform them of their Account status, changes or alterations to the service or to inform them about additional offerings of services being provided or contemplated. Users may at any time request that they not receive informational e-mail messages not related to their Account activity or current use of the service by sending their name and address to Support@Tariva.com 4. Support Tariva will provide e-mail and telephone support during its normal business hours as specified in the Software Support Agreement attached hereto and made a part hereof as Exhibit A. Under no circumstances will Tariva have any obligation to provide you with hard-copy documentation, upgrades, enhancements or modifications, unless specifically contracted to do so. 5. Provision of Contact and Billing Information and Payment of Fees You agree to provide Tariva with truthful, accurate, and complete contact information, including your legal name, company name, street address, e-mail address and telephone number and to update this information within thirty (30) days of any changes. If the contact information you have provided is false or fraudulent, Tariva reserves the right to terminate your access to the Service. If and/or when the terms of your Tariva AHS Account require you to pay for the Service, you agree to provide Tariva with accurate billing information and you agree to pay Tariva, by authorized credit card, the then applicable fees (the "Fees"). Applicable Fees for the use of the basic Service and Fees applicable to additional services are available from Support@Tariva.com. Tariva reserves the right to change the Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by e-mail). The Fees will automatically be charged in advance on the 25th day of each month, for the next succeeding month, during the term of your Subscription Agreement. Payment by fraudulent means will result in immediate and permanent termination of your account, potential forfeit of your Content and possible criminal penalties. Your Tariva Account will be considered delinquent if your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next accounting cycle. The additional services may be suspended, archived or purged from the system if your Account is delinquent for more than one billing cycle. Tariva reserves the right to impose a charge to restore data archived from delinquent accounts. Tariva may choose to issue an invoice to you, in which case, full payment for invoices issued in any given month must be received by Tariva thirty (30) days after the date of the invoice or the Service may be terminated. Unpaid invoices are subject to interest of 1.5% per month on any outstanding balance or the maximum permitted by law, plus all expenses of collection. In order to receive an adjustment or credit if you believe Tariva has billed you incorrectly, you must contact Tariva no later than sixty (60) days after the closing date on the billing statement in which the error or problem first appeared. Inquiries should be directed to Tariva's Customer Support department. 6. Passwords and Security You will choose or be given a Password and User ID to use in connection with your Account on the Service. You are entirely responsible for maintaining the confidentiality of your Password, User ID and Account (including, if applicable, the Passwords, User IDs and Accounts of each user accessing the Service by means of an Account established by you). Furthermore, you are entirely responsible for any and all activities that occur under your Account (including, if applicable, the Accounts of each user accessing the Service by means of an Account established by you) and you shall ensure that you exit from your Account at the end of each session. You shall notify Tariva immediately of any unauthorized use of your Account (including, if applicable, the Passwords, User IDs and Accounts of each user accessing the Service by means of an Account established by you) or any other breach of security. Tariva cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements. 7. Termination The initial term of the Subscription Agreement is twelve (12) months. Thereafter, this Subscription Agreement is a monthly agreement, automatically renewable unless either Party requests change or termination. This Subscription Agreement will terminate immediately if Licensee materially breeches or otherwise fails to comply with the Terms and Conditions of the Agreement. Either Party may terminate this Subscription Agreement by notifying the other Party thirty (30) days in advance of the termination date, once the initial term of twelve (12) months is completed. Tariva may also terminate this Subscription Agreement or discontinue the Service immediately, without prior notice or liability for any or no reason. If you have purchased the Services, you will pay in full for the Service up to and including the last day on which the Service is provided. To cancel the Service, you must contact Tariva via e-mail, fax, postal mail or phone. Tariva will remove the Content of an account shortly after cancellation. Tariva may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement. Upon expiration or termination, you will immediately cease all use of the software and any documentation. Except for the License granted in Article 2 and except as otherwise expressly provided herein, all articles and provisions of this Subscription Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy and all other remedies will be available whether or not the License is terminated. Notwithstanding the foregoing, if you are dissatisfied with the Service, the materials available on or through the Service, or with any of Tariva's terms and conditions, your sole and exclusive remedy is to discontinue using the Service. 8. Warranty and Disclaimer THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND TARIVA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, CORRESPONDENCE TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF PERMITTED BY LAW, TARIVA'S LIABILITY IS LIMITED TO RESUPPLYING THE SERVICE. TARIVA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TARIVA, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.9. Limitation of Liability TARIVA'S TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS SUBSCRIPTION AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU TO TARIVA FOR THE SERVICE UNDER THIS SUBSCRIPTION AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL TARIVA ITS SUPPLIERS OR LICENSORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, INTERRUPTION OF BUSINESS OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT) ARISING OUT OF THE USE OR THE INABILITY TO USE THE SERVICE OR ANY DATA OR CONTENT THEREWITH WHETHER OR NOT FORESEEABLE AND EVEN IF TARIVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.10. U.S. Government Matters You may not remove or export from the United States or allow the export or re-export of any part of the Proprietary Software or applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury, Office of Foreign Assets Control or any other United States or foreign agency or authority. As defined at 48 C.F. R. 2.101, the Proprietary Software and Documentation licensed in this Subscription Agreement are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation" and as such terms are used in 48 C.F. R. 12.212. Consistent with 48 C.F. R. 12.212 and 48 C.F. R. 227.7202-1 through 227.7202-4,all US Government end users acquire the Proprietary Software with only those right set forth therein. Any use modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Subscription Agreement and will be prohibited except to the extent expressly permitted by the terms of this Subscription Agreement. 11. Third Party Linking Tariva may, at its election, provide links from the Service to other World Wide Web sites or resources. Because Tariva has no control over such sites and resources, you acknowledge and agree that Tariva is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Tariva shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. 12. Miscellaneous This Agreement is between Tariva and you, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Service by means of an Account established by you). The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Subscription Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Subscription Agreement will otherwise remain in full force and effect and enforceable. This Subscription Agreement is not assignable, transferable or sublicensable by you except with Tariva's prior written consent. THIS SUBSCRIPTION AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO THE CONFLICT OF LAW RULES, PRINCIPALS OR PROVISIONS THEREOF. YOU AND TARIVA AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE COUNTY OF MIDDLESEX IN THE COMMONWEALTH OF MASSACHUSETTS. You and Tariva agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both Parties agree that this Subscription Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Subscription Agreement and that all modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture or employment is created as a result of this Subscription Agreement and you do not have any authority of any kind to bind Tariva in any respect whatsoever. In any action or proceeding to enforce rights under this Subscription Agreement, the prevailing Party will be entitled to recover costs and reasonable attorneys' fees. All notices under this Subscription Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Tariva's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by an authorized representative of Tariva in writing. It is the express will of the Parties that this Agreement and all related documents have been drawn up in English. EXHIBIT A Software Support Agreement Terms and Conditions 1. "Licensed Software" means the Software listed on the first page hereof wherein Developer is listed as Tariva. 2. This Agreement does not include Operating System Software Language and Compiler, which may be required to execute the Software, if not listed on the first page hereof. 3. Coverage under this Agreement becomes effective immediately after initial installation. During the Agreement period Tariva shall provide to Licensee the items listed below for the appropriate Service Level designated on the first page hereof: a. Enhancements and updates to the Licensed Software as released by Tariva during the term of this Agreement. b. Telephone and e-mail support in using the Licensed Software. (Training of personnel who have not attended Tariva training classes is NOT covered under this Agreement, but can be covered under a separate arrangement.) c. Reasonable services to correct verified programming errors (bugs) reported by Licensee for which Tariva's diagnosis indicates are caused by defect in the Licensed Software. d. Reasonable services to correct Tariva verified documentation errors. 4. Licensee understands that services described herein shall be provided as specified below: Monday through Friday, 9 am to 5 pm (Eastern Time) with one (1) Business Day "Typical Response Time". "Typical Response Time" means that someone will typically respond to Licensee within that time measured from the time Licensee logs the call with Tariva. The purpose of Tariva's response will be to ascertain the full nature of the problem and begin corrective measures as appropriate. Licensee MUST IDENTIFY TO TARIVA THAT A CALL IS A "SUPPORT CALL" when logging the call. Otherwise, it will be handled as a routine telephone call with Typical Response Time NOT applying. 5. Tariva will respond to Licensee's requests for Software assistance on a "best-effort" basis. Tariva will first attempt to ascertain the nature of the request by phone or e-mail. Tariva will attempt to correct any problems with the assistance of Licensee's personnel by phone or e-mail. If the problem cannot be solved using the above methods, Tariva will instruct Licensee on the magnitude of the problem and, if appropriate, show Licensee what programs can be operated until the problem is resolved. Licensee will be made aware of the extent of the unresolved problem and the expected time it will take to solve it. 6. When certain software program errors occur, it is possible that data files could become corrupted or must otherwise be corrected. It is also possible that data files cannot be reasonably corrected and must be recreated from backup copies of data files and that one or more days of data might need to be re-entered in the system. The re-entry of data is the responsibility of the Licensee. Tariva will assist Licensee in recreating data files from backup copies. Tariva assumes no responsibility for lost data or data that must be recreated. 7. Licensee agrees that during the term of this Agreement, Licensee will not allow any person or persons to use the software other than its employees and will not allow any person or persons to modify in any way the Software (other than those specifically authorized by Tariva in writing). Tariva shall not be responsible for warranty of the Software under this Agreement if Licensee has modified the Software in any way. 8. Licensee hereby acknowledges that the proper functioning of the Software is dependent upon the proper configuration of hardware, proper configuration of the operating system, and proper system configuration parameters. If Licensee has modified any of the above listed items without consulting with Tariva and getting Tariva's approval of such changes in writing, the Software may not function properly. Licensee hereby agrees, if changes are made without Tariva's approval in writing Tariva shall not be responsible for the failure of the Software to operate properly. Licensee further agrees that Tariva may be unable to fulfill its obligations under this Agreement until the items are brought into conformance with approved configurations. 9. Licensee agrees that during the term of this Agreement, Licensee will follow all procedures as specified by Tariva in the User Documentation and Manuals, or any other documents provided. 10. TARIVA GRANTS NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON ANY SERVICE RENDERED HEREUNDER. 11. UNDER NO CONDITION SHALL TARIVA BE LIABLE FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, OR CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONNECTION WITH THE SUPPORT SERVICES OR LICENSED SOFTWARE HEREUNDER. 12. Fee payment and Agreement Renewal. a. The fees, if any, due pursuant to this Agreement are due and payable when stated. Support services will not be provided on those accounts that have not been paid within 15 days of the due date. b. If applicable, support and maintenance renewal fees may be increased from time to time to stay in line with increases in the list price of the products licensed and/or increases in Tariva’s costs associated with support and maintenance.13. In addition to any other sums payable hereunder, Licensee shall pay any and all taxes arising from, or based upon the fees and associated media and documentation furnished for Licensee's use, including any sales and/or use tax, local privilege or excise tax, property tax or assessment and related interest and penalties, if any, imposed by any governmental authority at any time. 14. Tariva shall not be held liable for delays in any of its performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, strikes, or inability to obtain labor or materials in a timely manner.