Realtime General Terms and Conditions

  • Updated: Sep 13, 2016

1. Definitions

a. "Authorized User" shall mean the Customer's employees who are authorized by Customer to access and use the Realtime Services in accordance with this Agreement, subject to conditions or restrictions herein or under any agreement with Realtime.

b. "Customer Monthly Usage" shall mean the amount of Messages, amount of Visits and the amount of Peak Connections the Customer has transacted during a given month.

c. "Customer Data" shall mean data contained in the Messages published by Customer or its users to the Realtime Services.

d. "Client Software" shall mean the software (if any) distributed to Customer (subject to Realtime's applicable license agreement), which enables Customer to access and use the Realtime Service.

e. "Visit" shall mean the presence of a user who has not visited a Customer website using the Client Software anytime within the past 30 minutes.

f. "Peak Connections" shall mean the maximum number of connections to the Realtime Service during any one-minute period each day, where connections are measured as the number of unique TCP/IP sockets established with the Realtime Services servers.

g. "Documentation" shall mean the online documentation available on Realtime's website that describes the Realtime Services.

h. "Message" is a set of 800 bytes of UTF-8 encoded data that is sent or received through the Realtime Services. For example, a Message sent by one Realtime client to another Realtime client is counted as two messages (one sender and one receiver). If a message is sent by one Realtime client through a channel with no active subscriptions one message will still be counted. i. "Metered Usage" shall mean the portion of the Customer Monthly Usage that exceeds the Customer's Reserved Capacity

j. "Payment Method" shall means the type of payment method designed by Customer in the Purchase Confirmation for Realtime Services.

k. "Premium Services" shall mean features that can be provided by Realtime upon request and payment of applicable fees to enhance the basic Realtime Services. Premium Services can be through the Realtime Administration Portal or by contacting Realtime Support.

l. "Realtime Pricing Link" shall mean the Realtime website page located

at www.realtime.co/pricing. This page describes available Realtime Services, including pricing of each service.

m. "Realtime Administration (account) Portal" means the password protected section of Realtime's website for certain Customer activities, including setting configurations, purchasing of Realtime Services, and viewing usage analytics. .

n. "Realtime Free and Ignite Cloud" shall mean the service tiers associated with such title that are specified on the www.realtime.co/pricing page.

o. "Realtime Corporate Cloud" shall mean the next level service tiers that are applicable for usage that exceeds the maximum Realtime Free and Ignite Cloud service tiers.

p. "Realtime Services" shall mean the various products and services offered through the Realtime website, which may be updated at any time in Realtime's sole discretion.

q. "Realtime Service Selection" shall mean the specific Realtime Services selected by the Customer on the Realtime Offering Link with the Purchase Confirmation.

r. "Purchase Confirmation" shall mean Customer's online confirmation of its Realtime Service Selection and submission of Customer's valid payment details.

s. "Reserved Capacity" shall mean the quantity of Peak Connections, the quantity of Visits and the amount of Messages available to Customer for the Service Period based upon Customer's Realtime Service Selection.

t. "Service Period" shall mean the term of the Realtime Services purchased by Customer.

u. "Service Tier" shall mean either a Free, Ignite or Corporate Cloud pricing tier as specified here www.realtime.co/pricing or within the Realtime Administration Portal, or a Corporate Cloud pricing tier as specified in a separate Customer Corporate Cloud Addendum.

v. "Usage Data" shall mean final Customer Monthly Usage data used by Realtime to calculate Customer Fees.

w. "Usage Restrictions" shall mean the limits on Customer Monthly Usage as set forth in the Realtime Administration Portal and/or by the terms of the Realtime Service Selection

2. Realtime Ownership Rights

All Realtime Services provided by Realtime or available on Realtime's website, and all materials displayed on Realtime's website or used in connection with Realtime Services, are owned by Realtime (or used by Realtime under license(s) or permission of others). Realtime owns its trademarks and trade names, and except as otherwise expressly provided herein, no license or right is granted in or to Realtime's trademarks and trade names Customer acknowledges and agrees that the Realtime Services, the Client Software, and Realtime's trademarks, and all proprietary rights contained therein, as well as any modifications, enhancements or derivative works (including all feedback relating to the use of the Realtime Services and the Client Software) relating thereto, are and will remain the exclusive property of Realtime or its licensors. Realtime reserves all rights not expressly granted to Customer in this Agreement. As between the

parties, Customer retains all ownership in and to the Customer Data subject to the license granted under Section 3.

3. License Rights

a. Subject to Customer's timely payment of applicable fees, Realtime grants to Customer a non- exclusive, non-transferable, revocable limited license during the Service Period to use the Realtime Services purchased by Customer to the extent necessary to access and use the Realtime services in accordance with the terms of this Agreement and the applicable Realtime Services Selection. Such license shall be limited to Customer's use of only the Realtime Service Selection specified in Customer's Purchase Confirmation. Any use of Realtime Services for any purpose other than specifically permitted herein or without Realtime's prior consent (or the prior written consent of its licensors if applicable) is expressly prohibited. Realtime reserves all rights not expressly granted in this Agreement, including as to intellectual property rights.

b. Realtime shall have a non-exclusive, non-transferable, worldwide, perpetual, sublicensable, fully paid up and royalty free limited license to collect, analyze or use Customer Data to perform the Realtime Services and to prepare or develop certain statistical data relating to Realtime's delivery of any and all Realtime Services, solely for the development, tuning, and scaling of the Realtime Services, including the generation of reports for both internal use purposes as well as reports available to the Customer, which may be offered at an additional cost. Realtime will take reasonable measures to keep all statistical data confidential, and will not share this data with any third parties, except Customer agrees that Realtime may aggregate Customer data with other data (and/or segregate portions of Customer Data) so that it is not personally identifiable to Customer ("Anonymous Aggregate Data"). Customer further agrees that Realtime may use, display and exploit such Anonymous Aggregate Data (for example, advertising the total number of messages sent through the Realtime Service per day) and may disclose the same to third parties.

Any Customer Data retained by Realtime (other than Anonymous Aggregate Data) shall not be disclosed to any third party unless such disclosure (i) is approved in writing by Customer (ii) is required by law; or (ii) is made by Realtime in response to legal process. Any such use, collection and disclosure of the Customer Data by Realtime shall comply with the law applicable to such activities in the locale where they are conducted.

Realtime acts solely as a network transport, and does not filter or inspect the data sent by Customer or Customer's end users except to the extent described herein. Thus, Customer shall be

responsible for ensuring that Client Software is not vulnerable to any virus, malware, tracking software or system or other technique for the purpose of tracking users, behavioral targeting or any unlawful purpose.

4. Proprietary Restrictions

Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer or a third party (directly or indirectly, in whole or in part) to:

a. Reverse engineer or attempt to derive the source code from or create derivative works of the Realtime Service, or any portion thereof;

b. Use the Realtime Services in a greater capacity than allowed for the Realtime Service identified in the Customer's Purchase Confirmation;

c. Sublicense, distribute or pledge all or any part of the Realtime Services,

d. Access, use, or copy any portion of the Realtime Services to directly or indirectly to develop, promote or support any product or service that is competitive with the Realtime Services,

e. Lease, rent or commercially share or otherwise use the Realtime Services for purposes of providing a service bureau or providing third party hosting, application service provider type services;

f. Remove any identification, or patent, trademark, copyright, or other notice, from or displayed with any Realtime Services or Client Software;

g. Interfere with or disrupt the integrity or performance of all or any part of the Realtime Services or third-party data contained therein;

h. Attempt to gain unauthorized access to all or any part of the Realtime Services or the related systems or networks, including access to other Realtime customer's data;

h. Use any name, mark, or designation of Realtime, or any of its affiliates or licensors or their respective products or services, unless expressly permitted herein or by Realtime in writing;

i. Use the Realtime Services in connection with any activity which may result in serious property damage, or death or serious body injury; and

j. Use the Realtime Services including the transmission of Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer's content in connection with the Realtime Services violates such party's rights including without limitation, notices pursuant to the Digital Millennium Copyright Act.

Realtime reserves the right to block any Customer Data and Customer account that violates the terms of this Section 4.

5. Further Customer Obligations

Customer shall be responsible for ensuring that all Authorized Users are bound by the terms and conditions of this Agreement and the usage rights applicable to the Realtime Services ordered under a Purchase Confirmation. Customer shall also verify and be responsible for the accuracy, quality, integrity and legality of Customer Data. Customer represents and warrants that it is entitled to handle and transmit Customer Data and that its use or acquisition of Customer Data does not violate any contractual restriction (such as confidentiality) or applicable law. Customer shall indemnify and hold harmless Realtime for any violation or breach of any provision of this Agreement by any person or entity that accesses or uses Realtime Services as Customer's Authorized User.

Customer has sole control over the Customer Data uploaded in the Realtime Services, and acknowledges Realtime has no control of the Customer Data. Customer will ensure that each username and password issued to a Customer will be used only by an Authorized User. Customer is responsible for maintaining the confidentiality of all usernames and passwords. Customer is solely responsible for all activities that occur under such usernames and passwords. Customer agrees:

a. to only allow Authorized Users to use its account, usernames or passwords,

b. to keep a current list of all Authorized Users that shall be shown to Realtime upon request, c. to promptly notify Realtime if it becomes aware, or should be aware, of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Realtime Service. Realtime will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords;

d. to promptly fix any bugs or flaws in Customer's software (or to cease using such software that cannot be fixed) that interfere with or cause the Realtime Services to be accessed incorrectly; for example, software that generates incorrect API calls to the Realtime Service, and software that uses incorrect authentication tokens to access the Realtime Service.

e. it will not, and will not permit any third party to, upload, post, email, transmit or otherwise make available using the Realtime Services any material that contains software viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of Realtime Services or any computer software, hardware or telecommunications equipment used in connection with such services.

f. Customer will not access any information or data provided or controlled by any other end user of Realtime and will abide by and will not circumvent or otherwise disable or override any security or data protection measures implemented by Realtime;

g. the Customer Data does not, and will not, violate any applicable law, including any law or regulation regarding the transmission of technical data exported from the United States or any other applicable country, any law or regulation regarding privacy rights, or any law or regulation regarding harassment or defamation or other tort;

g. Customer shall employ reasonable professional standards in performance of its rights and obligations under this Agreement, and shall avoid deceptive, misleading or unethical practices that may be detrimental to Realtime or the Realtime Services.

h. Customer shall not use Realtime Services to conduct any business or activity, or to solicit the performance of any activity, which is prohibited by or would violate any applicable law, rule or regulation.

Realtime reserves the right to block any Customer Data and Customer account that violates the terms of this Section 5. Customer shall comply with any Usage Restrictions applicable to the Realtime Service Selection by Customer in the Realtime Administration Portal.

6. Fees & Payment

a. Fees. The fees for each Realtime Service Selection are as specified on the Realtime Offering Link and on the Realtime Administration Portal, and are subject to change at any time at Realtime's sole discretion, provided that fee changes will only apply to services after notice of such fee change.

b. Reserve Capacity Billing. The Reserve Capacity tiers chosen by the Customer in their Realtime Service Selection are initially billed immediately in advance for the remainder of the billing cycle. All subsequent months during the Service Period shall be billed monthly in advance at the beginning of each month.

c. Metered-Usage Billing. Metered Usage of the Realtime Services by the Customer is billed in arrears during the next monthly billing cycle based on the Usage Data of Realtime Services not subject to the Reserve Capacity.

d. Premium Services Billing. Premium Services are billed either in advance and/or arrears, as specified on the Realtime Administration Portal. For Premium Services billed in advance, initial billing shall be immediately due and prorated based on the Customers current registration anniversary date. All subsequent months during the Service Period shall be billed monthly. For Premium Services billed in arrears, Customer shall be billed on the subsequent monthly billing cycle in which Value Add Services were made available.

e. Realtime Corporate Cloud Service Tier Upgrade. The upgrade policy for a Customer in the Corporate Cloud is specified on the Customer Corporate Cloud Addendum.

f. Payment: Customers are invoiced monthly.

g. Billing Contact: Realtime will send billing correspondence to the email address specified in the online Realtime Services registration page.

h. Payment Disputes: In the event of a good faith dispute as to the calculation of a charge, Customer shall immediately give written notice to Realtime stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Realtime of such partial payment shall not constitute a waiver of payment in full by Realtime of the disputed amount. Any undisputed amounts not paid within fifteen (15) days of receipt of invoice shall accrue interest at a rate of ten percent (10%) per annum, or the maximum legal rate, whichever is less. Notwithstanding anything to the contrary contained in this Agreement, Customer's failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Realtime to suspend its provision of the Realtime Service on ten (10) business day's prior notice and require payment in advance until Customer account is paid in full.

i. The fees charged by Realtime hereunder do not include any taxes, duties or charges of any kind. Customer will be responsible for all applicable sales, use, value added, goods and services, consumption, withholding, excise and any other similar taxes or federal, state, local taxes or other government taxes related to the payment under this Agreement (excluding taxes based on Realtime's net income).

j. Refunds: No Refunds will be given.

7. Term & Termination

a. Term. The term of this Agreement shall begin upon acceptance of this Agreement as specified in the preamble and shall continue until the earlier of (i) expiration of the Service Period that is not renewed; or (ii) termination under Subsection (b), (c) or (d) of this Section or as otherwise expressly permitted in this Agreement. A Service Period shall commence upon Customer's completion of a Purchase Confirmation and full payment.

b. Termination by Customer. Customer may terminate this Agreement and the Service Period by

(i)cancelling its Realtime Service Selection using the cancellation process on the Realtime Administration Portal, or (ii) sending an email to support(at)Realtime.co, provided that termination by email shall only be effective upon confirmation of receipt by Realtime. Termination within five (5) days of the end of the month shall not be effective until the following month and will be subject to an additional month charge. ("Cancellation Period").

c. Termination by Realtime. Realtime may terminate this Agreement and any Service Period, without cause, upon providing the other party with thirty (30) days prior written notice, except

the notification period for Customer's use of Realtime Services provided free of charge, shall be fifteen (15) days. Realtime may also terminate this Agreement and Realtime Services as otherwise provided in this Agreement.

d. Termination for Breach. Either party may terminate this Agreement and the Service Period upon notice to the other party if the other party breaches any material term of this Agreement, which breach is not cured within thirty (30) days of the original notice thereof, PROVIDED HOWEVER that (i) breach due to Customer nonpayment must be cured within five (5) days, and

(ii)as to any breach of Section 3 or Section 4 above, or breach by Customer in connection with any Realtime Services provided free of charge, the cure period shall be fifteen (15) days.

e. Effect of Termination. Upon expiration or termination of this Agreement, (a) the Service Period shall cease, and all license rights to use the Realtime Services, Client Software and the Documentation shall cease, and Realtime shall discontinue the provision of the Realtime Services, and (b) Customer shall immediately pay any outstanding invoices, including fees owed for outstanding Service Periods. Upon termination, Realtime shall have no obligation to retain any data, files or information associated with Customer's account.

f. For avoidance of doubt, termination by Customer of any Service Period will also terminate any rights under this Agreement.

g. Survival. The terms and provisions in Section 3(b) ("License Grant to Realtime"), 4 ("Proprietary Restrictions"), 5 ("Further Customer Obligations"), 10 ("Confidential Information"), 11(b) and (c) (Realtime Disclaimers), 12 ("Customer Warranties"), 13 ("Limitation of Liability"), "Customer Indemnification" section of Section 14, and 15 ("Miscellaneous") herein shall survive expiration or termination of this Agreement.

8. Service Delivery and Support

Realtime shall provide the different service level commitments commensurate with the Customer's Realtime service levels that are described on the Realtime Offering Link and as listed on the Realtime Administration Portal.

9. Customer Advertising Commitments & Trademark Usage

Customer agrees that Realtime is granted the right to show, display and use Customer's name (including any trade name or trademark associated with such name) on a list of customers of the Realtime Service, including on Realtime's website, provided that such list does not imply endorsement of the Realtime Service.

10. Confidential Information

a. The term "Confidential Information" means all information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") pursuant to this Agreement, which the Disclosing Party designates as confidential at the time of disclosure, or a reasonable person should know to be confidential. Notwithstanding the foregoing, the Realtime Services, software (object code and source code), the Documentation, training materials, customer listings, future offerings and products, business plans, investors, pricing, including the fees paid hereunder, user IDs and passwords shall be deemed Confidential Information without any need to designate such information as confidential. Confidential Information shall not include any information which is:

(i)already publicly known through no fault of Receiving Party, (ii) created by the Receiving Party without reference to any Confidential Information of Disclosing Party, (iii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party, (iv) required to be publicly disclosed by law or court order, provided the Disclosing Party is given reasonable advance notice of the obligation to produce Confidential Information, or (v) is required by potential investors or necessary pursuant to acquisition or merger activity directly related to the Receiving Party, as part of the associated due diligence process, provided that any recipient agrees to confidentiality obligations that are comparable to the provisions herein. Confidential Information shall remain the sole property of the Disclosing Party, and each party acknowledges and agrees that it does not acquire any rights therein except as expressly otherwise provided in this Agreement.

b. Protection of Confidential Information. The Receiving Party shall hold the Disclosing Party's Confidential Information in confidence and may only disclose such to employees and consultants on a need to know basis who are subject to confidentiality obligations substantially similar to those set forth in this Agreement. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as contemplated or allowed under this Agreement. Each party agrees to use the same level of care to protect the other party's Confidential Information from unauthorized use or disclosure as it uses to protect its own such information, but in no event with less than reasonable care. Receiving Party shall, as soon as reasonably practical after discovery of a breach of this Confidentiality section, report to the Disclosing Party any unauthorized use of, disclosure of or access to the Disclosing Party's Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident; and take all reasonable measures to prevent any further unauthorized disclosure or access. The parties shall be entitled to seek injunctive or other equitable relief for breach by the other party of the terms herein. Such

injunctive or equitable relief shall not be exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.

11. Realtime Warranties

a)Limited Warranty. Realtime warrants it has full power and authority to enter into and perform the Agreement.

b)Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY AS SET FORTH IN THIS SECTION 11 (a), THE REALTIME WEBSITE, SERVICES, MATERIALS AND CLIENT SOFTWARE ARE PROVIDED "AS IS" AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, EXPRESS OR IMPLIED,, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

c)Further Disclaimer. REALTIME DOES NOT WARRANT THAT ACCESS TO THE SITE OR THE REALTIME SERVICES AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. REALTIME DOES NOT WARRANT THAT THE SITE OR ITS SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. REALTIME MAKES NO REPRESENTATION ABOUT THE ACCURACY, RELIABILITY, QUALITY, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SITE OR THE REALTIME SERVICES.

12. Customer Warranties

Customer warrants that (a) as to any Customer that is an entity, it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all locations where the nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform this Agreement; (d) the execution and delivery of this Agreement have been duly authorized; (e) Customer has all rights needed to provide, to access and to modify the Customer Data, including rights to grant the license to Realtime as specified under Section 3 above, and to distribute such Customer Data across the Internet using the Realtime Services.

13. Limitation of Liability

IN THE EVENT OF ANY CLAIM ARISING FROM REALTIME'S WEBSITE, ANY REALTIME SERVICES, OR ANY SOFTWARE, REALTIME'S AGGREGATE LIABILITY TO CUSTOMER, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE LESSER OF THE PRICE PAID BY CUSTOMER FOR THE REALTIME SERVICES TO WHICH THE INCIDENT RELATES (IF APPLICABLE), OR $2,500. REALTIME AND ITS LICENSORS, PARENTS, AFFILIATES, AND AGENTS SHALL NOT BE LIABLE TO THE CUSTOMER FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST INCOME, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGES FOR GOODWILL, PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OR IN ANY WAY RELATED TO THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE REALTIME SERVICES OR THE REALTIME WEBSITE. IN NO EVENT SHALL REALTIME BE LIABLE FOR ANY DAMAGES HOWEVER ARISING RELATED TO THE CLIENT SOFTWARE AS PROVIDED UNDER THIS AGREEMENT, EXCEPT AS SPECIFICALLY PERMITTED UNDER SECTION 14, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE.

14. Indemnification

Customer Exclusive Remedies. If Realtime Services or any part thereof (including any Client Software) become subject to a claim that they infringe a third party's U.S. patent, copyright, trademark, or other intellectual property rights ("Third Party IP Claims'), or if in Realtime's reasonable discretion Realtime Services are likely to become subject to such a claim, Realtime will have the right (but not the obligation), in its sole discretion, to: (i) replace the Realtime Services and/or the Client Software with non-infringing technology that is materially, functionally equivalent or superior; (ii) modify the Realtime Services and/or the Client Software so as to become non-infringing without materially affecting functionality; or (iii) obtain a license for Customer to continue using the Realtime Services and/or the Client Software. If (a) an injunction is issued by a court of competent jurisdiction barring Customer's exercise of the license rights granted under this Agreement, or (b) the alternatives specified in Subsections (i), (ii) or (iii) above are not available to Realtime on a commercially reasonable basis, then

Customer will promptly upon notice from Realtime cease using the infringing technology and Realtime will refund the pro-rata portion of the pre-paid fees attributable to such technology for the amount of the Service Period Customer is not able to use the Realtime Services. This section states the entire liability and obligation of Realtime, and the sole and exclusive remedy of Customer, with respect to any Third Party IP Claim relating to the Realtime Services (including the Client Software) provided under this Agreement.

Customer's Indemnification. Customer agrees that Customer's use of the Realtime Services, and the use of the Customer Data and information that Customer places on the Realtime Services site shall not: (a) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) include any illegal conduct or any violation any law, statute, ordinance or regulation (including without limitation those governing export control, dealer agreements, unfair competition, anti-discrimination or false advertising); or (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing or obscene. Customer shall indemnify, defend and hold Realtime, and Realtime's officers, directors, shareholders, parents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties"), harmless from and against any and all liability, loss, claim, damages, expense and costs (including but not limited to attorney's fees) incurred by or made against any Indemnified Parties in connection with any third party claim arising from: (1) Customer's breach of subsections (a),

(b)and (c) above; (2) breach of the warranties as set forth in Section 12 ; (3) breach of any of Customer further obligations under Subsections (a) through (h) of Section 5 above; (4) modifications or alterations to the Realtime Services; (5) Customer Data; or (6) any representations or warranties made by Customer regarding the Realtime Services. Realtime will promptly notify Customer in writing of such claim, and Customer shall have the sole control of such defense and all negotiations for any settlement or compromise (provided that any settlement or compromise is subject to Realtime's prior written consent), although Realtime will provide reasonable assistance in the same at Customer's request and expense.

15. Miscellaneous

a)Entire Agreement. This Agreement, and any other references, exhibits, amendments or attachments, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all written or oral prior agreements and understandings between the parties concerning such subject matter. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. The descriptive headings of the

sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

b)Amendments. Realtime, at its sole discretion, reserves the right to modify the terms and conditions of this Agreement at any time. In such case, Realtime shall notify (electronic mail to suffice) Customer of any amendment or updated Agreement available for online acceptance. Realtime shall provide Customer with at least sixty (60) days to accept the terms of the amendment or updated agreement. Upon Customer's acceptance, the amendment or updated agreement shall apply to Realtime Services commencing on the first day of the next full month after such acceptance. Customer shall be required to accept the amendment or updated Agreement if it desires to continue to use the Realtime Services. Except for amendment by Realtime as provided herein, any other amendment shall be in writing and signed by authorized representatives of each party.

c)Assignment. This Agreement, and any rights or obligations hereunder, shall not be assigned or sublicensed by Customer, without prior written consent from Realtime. Realtime may assign this Agreement without the consent of the Customer. Any attempted assignment or transfer by Customer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

d)Force Majeure. Realtime shall not be liable for any losses arising out of the delay or interruption of Realtime Services under this Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war, riot, flood, civil commotion, severe weather conditions, unplanned system down time, or any other cause beyond Realtime's reasonable control

e)Export. Realtime Services, Client Software and the Documentation are subject to U.S. Export control laws, including without limitation the U.S. Export Administration Act and its associated regulations and may be subject to export or import regulations of other countries. Customer hereby agrees that it will not export or re-export the Realtime Services, Client Software or Documentation in any form in violation of any applicable export or import laws of any jurisdiction.

f)Compliance with Laws. CUSTOMER REPRESENTS AND WARRANTS THAT IT SHALL COMPLY WITH THE U.S. FOREIGN CORRUPT PRACTICES ACT, UK BRIBERY ACT 2010, AND ALL APPLICABLE LOCAL ANTI-BRIBERY LAWS.

g)Choice of law. This Agreement shall be governed by and construed in accordance with the laws of California as if performed wholly within that state and without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement. The exclusive jurisdiction and venue for actions relating to or arising from this Agreement or any Realtime Services shall be instituted in the state courts located in Los Angeles County, California, USA.

h)Relationship. This Agreement shall not be interpreted to create an agency or consignment relationship, and neither party is a partner, employee, agent or joint venture partner of, or with, the other. Neither party may make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party's name or on its behalf. Each party acknowledges that this Agreement is non-exclusive and either party may contract with third parties for the procurement or sale of comparable products or services.

i)Notices. All notices related to this Agreement shall be in writing. Notices to Realtime will be effective if dispatched by hand (which shall be deemed given upon delivery), or reliable overnight delivery service (which shall be deemed given on business day after mailing), unless otherwise stated in this Agreement, sent to the CEO of Realtime, to Realtime's address as specified on www.realtime.co. Notice to Customer will be effective upon delivery by electronic mail, hand delivery or overnight mail to the address set forth in the Customer online registration. All notices shall be deemed received as follows: (a) if by hand delivery, on the date of delivery;

(b) if by overnight mail, on the date receipt is confirmed is confirmed by the carrier; or (c) if by electronic mail, 24 hours after the message was sent if no system error or other notice of non- delivery is generated., unless otherwise indicated by a party subject to the requirements of this subsection. Each party may change its delivery address herein by providing notice in accordance with this section.


REALTIME ADDITIONAL TERMS AND CONDITIONS FOR CORPORATE

1. Realtime provides the following Service Level Agreement:

(a.) The Realtime services shall be Available and functioning within the relevant SLA as set forth in the following table. The term “Available” means that the service is accessible based upon Realtime measurement techniques for the percentage of time (i.e. 24 hours a day, seven days a week) set forth in the Table 1.1 below, excluding any loss or interruptions of service due to actions or nonactions of customer or its users, or their respective equipment, or due to cloud service or internet provider or other Force Majeure events (as described in the Terms and Conditions). Uptime measurements shall be measured utilizing any commercially reasonable measurement technique that is mutually agreeable by Realtime and customer.

TABLE 1.1

Service

Uptime SLA

 

Cloud Messaging

100%

 

(Corporate Edition)

 

 

Cloud Messaging

99.999%

 

(Ignite Edition)

 

 

Cloud Storage

99.999%

 

(b.) Service Delivery Metrics. Realtime will provide services in accordance with the performance indicators set forth in Table 1.2 below. Notwithstanding anything herein to the contrary, Realtime shall have no liability for any failure to meet the performance indicators herein due to a Force Majeure event or to conditions or circumstances beyond Realtime’s reasonable control, or due to actions or nonactions by customer or its users.

TABLE 1.2

Support Response

Critical Impact

High Impact

Low Impact

Times

 

 

 

Standard Support

<2 hours

<4 hours

<2 Business Days

(Corporate)

 

 

 

Premium Support

<1 hour

<2 hours

<1 Business Day

(Corporate)

 

 

 

Standard Support

<1 Business Day

<2 Business Days

<3 Business Days

(Ignite)

 

 

 

2. Credit. For any failure to meet the service levels set forth in Section 1 above during the month, Realtime will issue a credit to customer to the extent of fees paid by customer for the period of time that such service did not meet the above levels, provided that customer provides prompt notice (and in no event later than 30 days) in writing to Realtime of such failure. Such credit will be issued on a monthly basis, and in no event shall the total credit claimed by customer in a month exceed the fees paid in the month. The credit constitutes the sole liability of Realtime, and sole remedy of customer, for any breach or failure of the service level agreement.

3. Customer Obligations. Customer will provide reasonable assistance and cooperation upon request by Realtime as needed to resolve any service level agreement failure.

4. Exclusions. Realtime is not liable for any credit or other claims related to service level agreement failures attributable to: (i) alterations or additions to any Realtime services (including client software) without Realtime’s consent; (ii) use or connection of Realtime services with other products not authorized, intended or supplied by Realtime; (iii) use of the Realtime services in violation of the Terms and Conditions between Realtime and Customer.

5. The additional terms herein are subject to the General Terms and Conditions between Realtime and Customer.