KTV Media Terms and Conditions for Single Order Professional Services

1. Work. KTV Media agrees to use commercially reasonable efforts to complete the services to be performed by KTV Media as set forth in the SOW (“Work”) in accordance with the schedule set forth therein.

2. Fees and Expenses. Customer shall pay to KTV Media the fees specified in the relevant SOW. Customer allots the amount indicated in the SOW (the “Fee Allotment”) to cover performance of Work through the estimated project completion date indicated in the SOW. If Customer wishes KTV Media to perform additional work above and beyond the amount of the Fee Allotment, the parties must execute a written change order describing the additional work and increasing the Fee Allotment. KTV Media will not perform work that exceeds the Fee Allotment without a change order executed by both parties. Customer will be responsible for the reasonable travel and living expenses, if any, incurred by KTV Media's staff in connection with the SOW, which expenses are not reflected in the Fee Allotment. Prior to commencement of the Work, Customer will pay the full amount of the Fee Allotment to KTV Media, which KTV Media will hold as a non-interest bearing retainer against performance of the Work. KTV Media will invoice Customer on a monthly basis for Work performed (and related expenses incurred) during the prior month, and it will simultaneously draw down from the retainer the amount of each invoice. Customer will pay all taxes (including VAT), customs, levies and other withholdings related to the Work, except that KTV Media will be responsible for all employment-related taxes associated with its personnel and all taxes on its net income. KTV Media may discontinue Work if Customer fails to pay any sum due.

3. Customer Responsibilities. KTV Media’s performance under the SOW is dependent upon Customer’s timely and satisfactory performance of any Customer responsibilities set forth on the SOW. KTV Media will be relieved of its obligations (e.g., milestone dates) to the extent fulfillment of them is dependent upon Customer responsibilities that are not met. Customer is solely responsible for the use to which it puts any deliverable or information provided by KTV Media hereunder and any decisions it makes in using such deliverable or information. Customer represents and warrants that it has all right and authority from any third party suppliers to allow KTV Media to perform the Work under the SOW and will defend, indemnify, and hold harmless KTV Media from any claims or damages incurred relating thereto.

4. Project Managers. Each party shall appoint an individual who will serve as their primary representative (“Project Manager”) under the SOW. Each Project Manager will:

(a) have overall responsibility for managing and coordinating the performance of the party it represents in a prompt and professional manner, and

(b) meet with the other party’s Project Manager at regular intervals to review progress and resolve any issues related to the SOW.

Customer’s project manager will be available at all times when KTV Media’s personnel are at Customer’s premises and resolve any issue related to the SOW.

5. Ownership.

(a) Customer agrees that any and all deliverables, plans, specifications, documentation, and other materials delivered to Customer under the SOW, together with all ideas, concepts, know-how, techniques, inventions, discoveries or improvements, including but not limited to computer software, whether in object code or source code form, developed by KTV Media and arising out of or relating to the Work (collectively, “Work Product”) are and shall be the property of KTV Media. KTV Media will retain all right, title and interest in and to the Work Product, provided that if and to the extent that the Work Product contains any Customer Confidential Information, Customer will retain all right, title and interest in and to such Customer Confidential Information.

(b) KTV Media hereby grants Customer a nonexclusive, nontransferable license to use the Work Product in conjunction with KTV Media’s software products, provided that (i) any Work Product prepared under the terms of the General Public License or any other Open Source License shall be released to the public and available to the Customer according to KTV Media’s obligations under the Open Source license, and (ii) KTV Media reserves the right to release all Work Product under the terms of the General Public License or any other Open Source license.

(c) KTV Media expressly reserves the right to perform work for other customers similar to the Work, and to incorporate Work Product (exclusive of any Customer Confidential Information) into its products and work product produced for others.

6. Confidentiality.

(a) "Confidential Information" means all information provided by one party to the other party relating to the SOW, which the disclosing party has designated in writing as being proprietary or confidential either at or within 30 days after the time of initial disclosure. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is public knowledge at the time of disclosure; (ii) becomes public knowledge through no act or omission of the receiving party; (iii) has been furnished to the receiving party by a third party whom the receiving party believes may legitimately provide the information without restriction on disclosure; (iv) was in the receiving party's possession, as evidenced by written or computerized records, prior to the date of the SOW and which was not acquired under obligations of confidentiality from the disclosing party; or (v) was independently developed by the receiving party as evidenced by written or computerized records.

(b) Each party will protect as proprietary and confidential all Confidential Information disclosed to the other under the SOW using at least as great a degree of care as used to maintain the confidentiality of its own most Confidential Information, but in no event less than a reasonable degree of care. Except with specific prior written authorization, neither party will use, either directly or indirectly, any of the other party’s Confidential Information other than for the purpose for which it has been disclosed in connection with the SOW. Each of the parties agrees that it will disclose the other party’s Confidential Information only to its employees who need to know such information, provided that such employees are bound by terms and conditions protecting such Confidential Information substantially similar to those set forth herein. This paragraph will survive the expiration or termination of the SOW for 5 years.

7. Warranty. KTV Media warrants that the Work under the SOW will be performed with the care and skill ordinarily used by other members of KTV Media’s profession practicing under similar conditions at the same time and in the same locality. Customer’s sole remedy for breach of this warranty will be re-performance of any Work that fails to conform to the warranty. U.S. Government Customers accept this warranty under 48 C.F.R. 46.709, 52.212-4(o) and (p), 52.244-6, or ¶ 2.a of GSA’s “Terms and Conditions Applicable to …132-32 ..., 132-33 ... and 132-34...” for Schedule 70 contracts, or other authority, as applicable. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, KTV Media MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH REGARD TO THE WORK OR WORK PRODUCT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. DAMAGES. IN NO EVENT WILL KTV Media BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE WORK OR WORK PRODUCT. KTV Media’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES WILL NOT EXCEED THE TOTAL FEES PAID TO IT UNDER THE SOW THAT IS THE SUBJECT OF THE CLAIM.

9. Non-Solicitation. Customer agrees that, while KTV Media is performing Work pursuant to the SOW and for a period of one year thereafter, Customer will not, except with KTV Media's prior written approval, hire, solicit or offer employment, directly or indirectly, to any KTV Media employee or staff.

10. Term and Termination. KTV Media’s performance of Work pursuant to the SOW will commence on the date set forth in the SOW and will continue until completion of all Work, unless earlier terminated. Either party may terminate the SOW if the other party fails to perform any of its material obligations hereunder and such failure has not been cured within 30 days of written notice thereof by the terminating party. The parties' right and obligations under Sections 5, 6, 8, 9 and 11 will survive expiration or termination of the SOW.

11. U.S. Government Customers. All Work and Work Product provided by KTV Media are “commercial items” as defined in 48 C.F.R. 2.101. Through a prime contract with KTV Media, all Customer responsibility and ownership terms are imposed on government Customers per 48 C.F.R. Part 12; through a subcontract to KTV Media, all Customer responsibility and ownership terms are imposed on government Customers through 48 C.F.R. 52.244-6. Notwithstanding the foregoing, purchases by government Customers through a GSA Schedule contract are subject to the Terms and Conditions for SIN 132-51 and any government rights arising thereunder, including rights arising through Federal Acquisition Regulations incorporated therein, are strictly limited to the extensions or other new development performed under the SOW. Customer acknowledges that KTV Media retains all rights in software and other intellectual property portions of Work Product that existed previously and are included in Work Product for functionality or similar beneficial purposes. Acceptance of Work and Work Product will be deemed as provided in 48 C.F.R. 52.246-6. Except as noted above to the contrary, all U.S. government Customers acquire Work and Work Product with only those rights set forth in the SOW.

12. General.

(a) Customer may not assign its rights under the SOW without the prior written consent of KTV Media. Each party’s rights and obligations under the SOW will bind and inure to the benefit of its permitted successors and assigns.

(b) The SOW may only be modified or amended by a document identifying itself as an amendment to the SOW and physically signed by an authorized representative of each party. No right or obligation arising under the SOW will be deemed waived unless the waiver is set forth in writing and signed by the waiving party. Failure or delay of a party to exercise any right or remedy will not constitute a waiver of rights or remedies.

(c) The SOW will be construed according to the laws of the Commonwealth of New York without regard to its choice of law rules.

(d) In the event of any conflict between these Terms and the terms of the SOW, the terms of the SOW shall govern.

(e) If any provision of these Terms or the SOW is held unenforceable or inoperative by a court of competent jurisdiction, either in whole or in part, the remaining provisions will be given full force and effect to the extent not inconsistent with the original terms of the SOW.

(f) Notices and communications required by the SOW will be in writing and may be delivered in person, by courier, transmitted by facsimile, or mailed prepaid first class, return receipt required, to the each party at its address listed below or another address subsequently designated in writing.

(g) Neither party will be liable for failure to perform any of its obligations hereunder (other than payment obligations) where such performance is prevented or interfered with by any cause beyond the reasonable control of the party obligated to perform.

(h) The SOW and these Terms constitute the entire agreement between the parties hereto with respect to its subject matter.