Saturday, May 18, 2013
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  1. Order, Acceptance and Service.

    1. When Accepted by 3rd Rail Systems, the Order submitted by Customer creates a contract between Customer and 3rd Rail Systems, consisting of the Order, the applicable Product and/or Service Description and these Terms of Service. An Order is "Accepted" by 3rd Rail Systems when (i) with respect to Orders submitted online, 3rd Rail Systems ships Products in response to the Order and bills Customer for payment and (ii) with respect to Orders reduced to writing and signed on an approved 3rd Rail Systems form, when an authorized representative of 3rd Rail Systems executes and delivers such form signed by Customer.

    2. 3rd Rail Systems will provide, and Customer will purchase and pay for, the Products and/or Services specified in the Order for the fees specified in the Order (the "Service Fees").

    3. In connection with any Hosting Services, Customer will not use storage space in excess of the storage limits established for the Services in the Service Descriptions, plus any storage space purchased by Customer. If Customer uses storage space in excess of such amounts, 3rd Rail Systems may, without limiting its other rights or remedies, assess Customer with additional fees.

    4. In connection with any Hosting Services, if Customer’s actual bandwidth usage in any month exceeds the limit in the Service Description, Customer will pay 3rd Rail Systems such additional fees as may be specified in the Service Description.

  2. Fees, Taxes and Payment. Customer will pay to 3rd Rail Systems the Fees in the manner set forth in the Order. The Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Products and/or Services or any software provided hereunder (excluding any tax on 3rd Rail Systems’s net income). All such taxes will be added to 3rd Rail Systems’s invoices for the Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Fees and related charges shall be due and payable within 30 days after the date of the invoice. Any amounts payable to 3rd Rail Systems not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If 3rd Rail Systems collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, Customer will pay all costs of collection, including, without limitation, all court costs and reasonable attorneys’ fees. If any check is returned for insufficient funds, 3rd Rail Systems may impose a processing charge of $25.

  3. Term and Termination.

    1. Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.

    2. 3rd Rail Systems may terminate this Agreement (i) if the Products and/or Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to Customer, if 3rd Rail Systems determines in good faith that Customer’s use of the 3rd Rail Systems Web site or the Customer Content violates the Acceptable Use Policy.

    3. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(c), 4, 8, 10, 11, 13 and 14 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which 3rd Rail Systems may be entitled.

  4. Customer’s Representations and Warranties. Customer hereby represents and warrants to 3rd Rail Systems, and agrees that during the Term Customer will ensure that: Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by 3rd Rail Systems to pay any fees, residuals, guild payments or other compensation of any kind to any Person; Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; and Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code.

  5. License to 3rd Rail Systems. Customer hereby grants to 3rd Rail Systems a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and make archival or back-up copies of the Customer Content).

  6. 3rd Rail Systems’s Acceptable Use Policy. Customer will abide by, and utilize the Services and the Customer Web site only in accordance with, the Acceptable Use Policy (the "Acceptable Use Policy") that 3rd Rail Systems posts on its Web site, as such Acceptable Use Policy may be changed by 3rd Rail Systems from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access 3rd Rail Systems’s Web site to determine if 3rd Rail Systems has made any changes thereto.

  7. Customer’s Responsibilities.

    1. Customer is solely responsible for the quality, performance and all other aspects of the Customer Content provided through the 3rd Rail Systems Web site.

    2. Customer will cooperate fully with 3rd Rail Systems in connection with 3rd Rail Systems’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for 3rd Rail Systems’s performance of its obligations that depend on Customer’s performance on a day for day basis. Customer will notify 3rd Rail Systems of any change in Customer’s mailing address, telephone, e-mail or other contact information.

    3. Because the Services may permit Customer to electronically transmit or upload content directly to the 3rd Rail Systems Web site, Customer shall be fully responsible for uploading all content to the 3rd Rail Systems Web site. Customer is also responsible for ensuring that the Customer Content is compatible with the hardware and software used by 3rd Rail Systems to provide the Services, as the same may be changed by 3rd Rail Systems from time to time. 3rd Rail Systems shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by 3rd Rail Systems to provide the Services.

  8. 3rd Rail Systems Intellectual Property.

    1. 3rd Rail Systems hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable 3rd Rail Systems Technology solely for the purpose of accessing and using the Services. Customer may not use the 3rd Rail Systems Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from 3rd Rail Systems to Customer any 3rd Rail Systems Technology, and all rights, titles and interests in and to the 3rd Rail Systems Technology shall remain solely with 3rd Rail Systems. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the 3rd Rail Systems Technology.

    2. 3rd Rail Systems’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of 3rd Rail Systems. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of 3rd Rail Systems. 3rd Rail Systems shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by 3rd Rail Systems to Customer. 3rd Rail Systems may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.

    3. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to 3rd Rail Systems relating to the Services will be treated as being non-confidential and non-proprietary. 3rd Rail Systems may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

  9. Limited Warranty.

    1. 3rd Rail Systems represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by 3rd Rail Systems generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies 3rd Rail Systems within 30 days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and 3rd Rail Systems’s sole obligation, for breach of the foregoing warranties shall be for 3rd Rail Systems, at its option, to re-perform the defective Services at no cost to Customer.

    2. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of 3rd Rail Systems’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer’s equipment or any third-party equipment not within the sole control of 3rd Rail Systems.

    3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, SUBWAY RECORDS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND SUBWAY RECORDS HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. SUBWAY RECORDS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

  10. Limitation of Liability.

    1. IN NO EVENT WILL SUBWAY RECORDS’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO SUBWAY RECORDS BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

    2. SUBWAY RECORDS CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. SUBWAY RECORDS WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.

    3. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTIONS 11 AND 12) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

    4. The limitations contained in this Section 10 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(c) shall not apply to liability arising on account of a party’s breach of Section 13 or to Customer’s indemnification obligations under Section 11.

  11. Indemnification of 3rd Rail Systems. Customer shall defend, indemnify and hold harmless 3rd Rail Systems, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "3rd Rail Systems Indemnitees"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the 3rd Rail Systems Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, any End User’s use of the Customer Content or the 3rd Rail Systems Web site, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of the Customer Content, or the use of the Services in combination with hardware, software or content not provided by 3rd Rail Systems, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any failure of the Customer Content to be compatible with the hardware or software used by 3rd Rail Systems to provide the Services, including any damage to 3rd Rail Systems’ servers or other hardware caused thereby.

  12. Indemnification of Customer.

    1. Subject to Section 10, 3rd Rail Systems shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any United States patent, copyright or trademark existing on the Effective Date, or that 3rd Rail Systems has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist 3rd Rail Systems in the defense or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by 3rd Rail Systems, but 3rd Rail Systems will not be liable for any costs or expenses incurred without its prior written authorization.

    2. Promptly after receipt by Customer of a threat of any claim or suit, or a notice of the commencement or filing of any claim or suit, against which Customer may be indemnified hereunder, Customer shall give written notice thereof to 3rd Rail Systems, provided that failure to give or delay in giving such notice to 3rd Rail Systems shall not relieve 3rd Rail Systems of any liability it may have to Customer hereunder, except to the extent that the defense of such claim or suit is prejudiced thereby. 3rd Rail Systems shall have sole control of the defense, and of all negotiations for settlement, of such claim or suit. Subject to the foregoing, Customer may participate in the defense of any such claim or suit at Customer’s own expense.

    3. If an injunction, decree or judgment is, or 3rd Rail Systems believes in its sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, 3rd Rail Systems may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer.

    4. Notwithstanding Section 12(a), 3rd Rail Systems assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by 3rd Rail Systems in writing, (iii) the Customer Content, or any content, data or information provided or supplied by an End User, or (iv) Customer’s use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF SUBWAY RECORDS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.

  13. Confidentiality; Non-Solicitation.

    1. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.

    2. Notwithstanding Section 13(a), the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

    3. Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.

    4. During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of 3rd Rail Systems performing services under this Agreement, while such employee is employed by 3rd Rail Systems and for a period of six months after such employee has left the employment of 3rd Rail Systems.

  14. Optional Services. In connection with any Optional Services:

    1. Customer must provide 3rd Rail Systems with any information, login identifications, passwords or other information or access to facilities that 3rd Rail Systems may reasonably require to provide the Optional Services 3rd Rail Systems will have no responsibility for any delays or increased costs or expenses associated with Customer’s failure to provide any of such information. If Customer does not provide any such information or access requested by 3rd Rail Systems within thirty (30) days of 3rd Rail Systems’s request therefor, 3rd Rail Systems may terminate the Order and retain any Fees paid.

    2. If Customer requested that 3rd Rail Systems perform the Optional Services by a particular deadline or that 3rd Rail Systems achieve some particular result or outcome, 3rd Rail Systems will use commercially reasonable best efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) 3rd Rail Systems’s ability to perform the Services is subject to Customer’s provision of information and access as provided above and (ii) 3rd Rail Systems has no liability or obligation to complete the Services by any deadline or achieve any particular outcome of result.

    3. If Customer wishes to convey documents or files to 3rd Rail Systems, Customer should deliver to 3rd Rail Systems a copy or duplicate of such documents or files and not the original copy. 3rd Rail Systems will not return to Customer any documents or files conveyed to 3rd Rail Systems.

  15. Miscellaneous.

    1. Independent Contractor. 3rd Rail Systems and Customer are independent contractors and nothing contained in this Agreement places 3rd Rail Systems and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

    2. Governing Law; Jurisdiction. The validity and effect of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A NEW YORK STATE OR FEDERAL COURT LOCATED IN FULTON COUNTY, NEW YORK, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

    3. Headings. The headings herein are for convenience only and are not part of this Agreement.

    4. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or 3rd Rail Systems, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and 3rd Rail Systems. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by 3rd Rail Systems in its sole discretion, which modifications will be effective upon posting to 3rd Rail Systems's Web site.

    5. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

    6. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Shared Customers may give, and be given, notice by electronic means in certain circumstances as provided in the Service Description.

    7. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

    8. Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of 3rd Rail Systems. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. 3rd Rail Systems may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    9. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.

    10. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, 3rd Rail Systems’s records of such execution shall be presumed accurate unless proven otherwise.

    11. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

    12. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement. Without limiting the foregoing, MSLI, GP, a wholly-owned subsidiary of Microsoft Corporation, is an intended third-party beneficiary of the terms and conditions set forth in Addendum A with the right to enforce those provisions as provided in the preceding sentence.

    13. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.

    14. Marketing. Customer agrees that during the term of this Agreement 3rd Rail Systems may publicly refer to Customer, orally and in writing, as a customer of 3rd Rail Systems. Any other public reference to Customer by 3rd Rail Systems requires the written consent of Customer.

    15. Telephone Monitoring. To ensure 3rd Rail Systems’s customers receive quality service, 3rd Rail Systems randomly selects phone calls for monitoring. These calls, between 3rd Rail Systems’s customers and employees, are evaluated by supervisors. This is to guarantee that prompt, consistent assistance and accurate information is delivered in a professional manner. 3rd Rail Systems has been properly licensed by the Georgia Public Service Commission to use such service observing equipment.

  16. Definitions. For purposes of this Agreement, the following terms have the meanings specified below:

    1. "Agreement" means each contract created between 3rd Rail Systems and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.

    2. "Customer Content" means all data, graphics, text, names, marks, logos, hypertext links to other Web sites and other information published by customer and displayed on the 3rd Rail Systems Web site.

    3. "End User" means any Person who accesses or uses the 3rd Rail Systems Web site via the Internet.

    4. "3rd Rail Systems Technology" means 3rd Rail Systems’s proprietary technology, including, without limitation, 3rd Rail Systems services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by 3rd Rail Systems or licensed to 3rd Rail Systems from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of 3rd Rail Systems Technology conceived, reduced to practice or developed during the term of this Agreement by either party.

    5. "Person" means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.

    6. "Proprietary Information" means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.

    7. "Order" means the Order submitted by the Customer to 3rd Rail Systems for Products and/or Services, whether such Order is submitted online through 3rd Rail Systems’s Web site or on a written Order form.

    8. "Terms of Service" means these Terms of Service, as the same may be modified, altered or amended from time to time by 3rd Rail Systems.

    9. "Service" means either Hosting Service or Optional Service. "Hosting Service" means the Service provided by 3rd Rail Systems in response to an Order whereby 3rd Rail Systems provides the Customer with specified connectivity, storage space and bandwith for the hosting of Customer information as more particularly described in the applicable Service Description. "Optional Service" means any additional Service (other than Hosting Service) 3rd Rail Systems may provide in response to an Order, as more particularly described in the applicable Service Description.

    10. "Service Description" means the applicable documents made available by 3rd Rail Systems to Customer to describe the applicable Services at the time the Order is accepted by 3rd Rail Systems.

    11. "Term" means the duration of any Agreement between 3rd Rail Systems and Customer. With respect to Hosting Services, the "Initial Term" is the initial term specified in the Order and the "Renewal Term" is the period of time beginning on the expiration of the Initial Term and ending on the termination of expiration of the Order in accordance with its terms. With respect to Optional Services, the "Term" begins when 3rd Rail Systems accepts the Order and ends on the first to occur of (i) 3rd Rail Systems’s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.



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