Master Subscription Agreement

     This MASTER SUBSCRIPTION AGREEMENT (hereinafter referred to as the “Agreement”) governs Your acquisition and use of the Emergency Visions, Inc. (hereinafter referred to as “EVI”) Solution as described on the EVI website.

     By clicking on the box indicating your acceptance or by executing an order form referencing this agreement, you agree to the terms of this Agreement including the terms of EVI’s Privacy Policy and Terms of Use contained on EVI’s public web site. If you are entering into this agreement on behalf of a Company or other legal entity, you represent that you have the legal authority to bind such entity and its affiliates to this Agreement. In which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not agree with these terms and conditions, You must not accept this agreement and may not use the Solution. This agreement is effective between You and EVI as of the date of Your acceptance of this agreement.

1. SUBSCRIPTION

1.1

In exchange for the fees set forth on the EVI website at the time of your click through or in an executed Master Subscription Agreement Order Form (hereinafter referred to as “Order Form”), EVI grants to You during the Term (as defined below) a non-exclusive and non-transferable right to use the EVI Solution. EVI will provide You ongoing technical support including all upgrades of functionality as detailed online or in Your Order Form.

2. PROHIBITED ACCESS AND USAGE

2.1

You shall only use the EVI Solution and related services for Your own internal purposes. All of Your users must be Your employees or agents working only on behalf of You and only for its benefit. Anyone not an employee of Yours who will have access to the EVI Solution must sign EVI’s Non-Disclosure Agreement. You agree to take full responsibility for the acts and omissions of anyone that has access to the EVI Solution that is not an employee of You. In no event and under no circumstances will You allow or facilitate access to the EVI web site or EVI Solution to a competitor of EVI via this Agreement and will immediately take steps to stop such prohibited access and report the incident to EVI if such prohibited access occurs. In addition, You may not access the Solution for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes.

3. YOUR RESPONSIBILITIES

3.1

This Agreement, Privacy Policy, Terms of Use, and if applicable, an executed Order Form, constitutes the entire understanding and agreement of the parties and supersedes all oral or written correspondence between the parties. Only a written document signed by both parties may change or amend this Agreement, except as provided herein. Any waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other breach. You must comply with all laws in connection with the use of the EVI Solution. In return for Your use of the EVI Solution and receipt of related services as listed online and, if applicable, described in the Order Form, You shall pay to EVI the fees listed online or, if applicable, in the Order Form. Unless otherwise stated on an applicable Order Form, fees are due net 10 days from the invoice date. Any fees not paid when due shall bear interest from the due date until paid at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is the lower rate. EVI reserves the right to restrict You from using the EVI Solution in the event payments for subscription amounts or related services have not been made on a timely basis. EVI’s policy is to deny access to its Solution if Your payment is 15 days or more past due.

4. INTELLECTUAL PROPERTY

4.1

EVI owns and retains all exclusive right, title and interest to all Intellectual Property associated with the EVI Solution including all upgrades and new functionality added to the EVI Solution, subject to Your right to use such Intellectual Property in accordance with the terms of this Agreement. For the purposes of this Agreement, Intellectual Property shall mean any and all now known or hereafter known tangible or intangible: (i) rights associated with works of authorship, including but not limited to copyrights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, pending patents, designs, algorithms and other such property rights; (v) all other intellectual, proprietary, and industrial property rights of every kind and nature however designated (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (vi) software and source code for the EVI Solution and its business strategy. The Intellectual Property of either Party to this Agreement also includes any Intellectual Property supplied by any subcontractor or agent of either Party.

5. LIMITED SOLUTION WARRANTIES AND REPRESENTATIONS

5.1

You

5.1.1

You warrant that any and all information posted on, processed or distributed using the EVI Solution will conform to EVI’s Terms of Use as posted on EVI’s Web site at www.emergencyvisions.com. EVI reserves the right to modify its content policies at any time, effective upon posting of an updated version of such policy. You are responsible for regularly reviewing the policies. If EVI, in its sole discretion, determines that You violate these Terms of Use policies, EVI will prohibit You from posting such content immediately and may terminate the Agreement at EVI’s sole discretion.

5.1.2

You warrant that none of the information You post to the EVI web site or distributes to third parties using the EVI web site or EVI Solution infringes on the Intellectual Property Rights of any third party.

5.2

EVI

5.2.1

Solution Limited Warranty.

EVI warrants that, during the applicable Subscription Term, the EVI Solution will substantially conform to the then current online documentation. This limited warranty only covers problems identified in a Written Notice delivered to EVI during the Subscription Term. Your sole and exclusive remedy, and EVI’s entire liability for breach of this limited warranty, shall be correction of the warranted nonconformity in the EVI Solution or, if such correction of the warranted nonconformity is commercially impractical, EVI may, at EVI’s option, terminate access to the non-conforming EVI Solution and refund the unused Subscription Fees paid by You for the remainder of the Subscription Term. This limited warranty shall not be valid to the extent the warranty nonconformity was caused by Your abuse, misuse, accident, alteration, or unauthorized modification of the EVI Solution

6. SERVICES LIMITED WARRANTY

6.1

EVI warrants that any EVI Services will be performed in a workmanlike and professional manner consistent with generally accepted industry practices. For any breach of this services warranty, Your exclusive remedy, and EVI’s entire liability, shall be the re-performance of such deficient Services and if EVI fails to re-perform such Services as warranted, You shall be entitled to recover the Services Fees paid to EVI for such deficient Services. You must identify in a Written Notice to EVI any deficiencies in such Services within ninety (30) days of completion of such deficient Services in order to receive the above warranty remedies.

7. MUTUAL DISCLAIMER

7.1

Except as expressly set forth in this agreement, neither party makes any other representations or warranties to the other party, and each party hereby disclaims all other warranties, express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose, accuracy of data and non-infringement and implied warranties arising from course of dealing or course of performance of the EVI solution.

8. INDEMNIFICATION

8.1

EVI Intellectual Property Indemnity

8.1.1

EVI shall defend and indemnify You from and against all lawsuits, claims and proceedings brought by a person or entity not a party to this Agreement against You, and will pay all final judgments awarded as a result of or in settlement of such lawsuits, claims and proceedings to the extent such lawsuit, claim or proceeding arises from any allegation that the EVI Solution infringes a third party’s Intellectual Property Rights. In the event that some or all of the Intellectual Property is alleged or adjudicated to infringe, EVI shall have the option, at its expense, to modify the Intellectual Property to make it non-infringing or to obtain for You a license to continue using the Intellectual Property.

8.2

Your Intellectual Property and Trademark Indemnity

8.2.1

You shall defend and indemnify EVI from and against all lawsuits, claims and proceedings brought by a person or entity not a party to this Agreement against EVI, and will pay all final judgments awarded as a result of or in settlement of such lawsuits, claims and proceedings to the extent such lawsuit, claim or proceeding arises from any allegation that the information that You post to the EVI web site or distribute using the EVI Solution infringes a third party’s Intellectual Property Rights and/or a third party’s Trademark Rights.

8.3

Your Indemnity

8.3.1

You shall defend and indemnify EVI from and against all lawsuits, claims, and proceedings, including reasonable attorney’s fees and costs, arising from or relating to any business conducted utilizing the EVI Solution. In addition, You agree to hold EVI harmless from and against all lawsuits, claims, and proceedings, including reasonable attorney’s fees and costs, arising from any business it conducts utilizing any third party product providers offered to You in conjunction with its use of the EVI Solution.

8.4

Procedure

8.4.1

Indemnitee shall within seven (7) business days after Indemnitee’s receipt of same notify Indemnitor in writing of every indemnifiable lawsuit, claim and/or proceeding, and every threat, notice or notice of intent related thereto. Indemnitee shall give Indemnitor the opportunity to defend or negotiate a settlement of any such claim at its expense, except that the Indemnitor will not, without Indemnitee’s express prior written consent, enter into any settlement that imposes any obligation upon Indemnitee or that does not unconditionally release Indemnitee. Indemnitee shall cooperate fully with the Indemnitor in defending, litigating and settling such claim at Indemnitor’s expense. Each party reserves the right, at its own expense, to participate in the defense of any claim subject to indemnification hereunder

9. LIMITATION OF LIABILITY

9.1

Neither party to this Agreement shall be liable for any indirect, incidental, special or consequential damages (including but not limited to such damages arising from breach of contract or warranty or from negligence or strict liability), including loss of profits, revenue, data or use or for interrupted communications, incurred by either party to this Agreement in connection with this Agreement, even if the other party or any other person has been advised of the possibility of such damages. In no event will EVI be liable for aggregate damages of any kind in excess of the net amounts paid by You to EVI pursuant to this Agreement hereunder in the twelve-month period immediately preceding the event giving rise to liability.

10. CONFIDENTIALITY

10.1

 Confidential Information

10.1.1

During the term of this Agreement and for a period of three (3) years thereafter, each party shall maintain in strict confidence and not disclose to any third party any Confidential Information of the other party, except as necessary for the performance of this Agreement and as otherwise agreed to by the parties. The party disclosing “Confidential Information” is referred to in this Agreement as the “Disclosing Party” and the party receiving such “Confidential Information” is referred to as the “Receiving Party.” “Confidential Information” means all non-public information (whether written, in a printed document, computer disk or tape or retained as mental impressions) concerning research and development; annual and long-range business plans; marketing plans and methods; product specifications, software, and business processes.

10.2

 Exclusions

10.2.1

Confidential Information does not include: (i) information that is within the knowledge of the public generally through no fault of the Receiving Party; (ii) information that the Receiving Party can show was previously known to it as a matter of record at the time of receipt; (iii) information that the Receiving Party may subsequently obtain lawfully from a third party who has lawfully obtained the information free of any confidentiality obligations; or (iv) information that the Receiving Party may subsequently develop as a matter of record, independently of disclosure by the Disclosing Party.

10.3

 Trade Secrets

10.3.1

During the term of this Agreement, and for so long thereafter as applicable state law allows, the parties agree to maintain in strict confidence, and agree not to use or disclose except as authorized in writing by the Disclosing Party, trade secrets as defined by applicable state law.

10.4

 Court Order

10.4.1

Notwithstanding the foregoing restrictions, the Receiving Party may disclose Confidential Information or trade secrets to the extent required by an order of any court or other governmental authority, but only after the Receiving Party has notified the Disclosing Party and the Disclosing Party has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure.

10.5

 Injunctive Relief

10.5.1

Each party acknowledges that disclosure of any Confidential Information or trade secret by it or its employees shall give rise to irreparable injury to the other party not adequately compensated by damages. Accordingly, a Disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the undertakings in this Section in addition to any other remedies that may be available, without the requirement of posting bond.

11. TERM AND TERMINATION

11.1

 Term

11.1.1

This Agreement shall have an initial Term of one (1) year (unless another Term has been agreed to in an applicable Order Form) from the Effective Date unless terminated earlier in accordance with this Section

11.2

 Automatic Renewal

11.2.1

This Agreement will automatically renew for another Term unless either party has given the other party 30 days written notice prior to the end of any Term of their intention to terminate the Agreement.

11.3

 Earlier Termination

11.3.1

This Agreement may not be terminated unless and until there has been a material breach of a substantive obligation under this Agreement that has not been cured within 30 days after written Notice (Registered Mail, Return Receipt Requested) has been provided by the party not in breach to the other party. Except as explicitly set forth elsewhere in this Agreement, the foregoing rights of termination will be in addition to any other legal or equitable remedies that the terminating party may have. The non-terminating party may pursue any and all legal rights it may have should the terminating party terminate for reasons not provided in this Agreement. EVI reserves the right to terminate this Agreement without any obligation should You or any affiliated entity purchase a company or be purchased by a company with which EVI is in substantially direct competition.

12. GENERAL PROVISIONS

12.1

 Force Majeure

12.1.1

EVI will not be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control including, but not limited to, acts or omissions of government or military authority, acts of God, telecommunications failures (including any systemic Internet failures and any interruptions in services of Internet Service Providers), transportation delays, earthquakes, fires, floods, labor disturbances, riots or wars.

12.2

 Assignment

12.2.1

Neither party will have any right or ability to assign (including any assignment by operation of law), transfer or sublicense any obligations or benefit hereunder without the written consent of the other, which consent will not be unreasonably withheld or delayed; provided that consent is hereby expressly granted for an assignment to a successor-in-interest in the event of a merger, acquisition or sale of all or substantially all of a party’s assets, but only if such successor party agrees in writing to undertake all of its predecessor’s obligations hereunder. This Agreement will be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. Notwithstanding anything to the contrary in this Section, EVI reserves the right to use Independent Contractors to deliver the services outlined in any Statement of Work that is part of this Agreement.

12.3

 Your Content

12.3.1

You acknowledges that EVI has the right, but no obligation, to monitor Your use of the EVI web site and any of Your Data (Your Data is any data, information or other materials, provided to EVI by You in the course of Your use of the EVI Solution) submitted to the EVI web site and to comply with legal obligations or governmental requests (including a government requirement to disclose Your Data), and to take such actions (including removing content or denying routing of certain transactions) if EVI reasonably believes that such actions are needed to prevent unlawful activity relating to the EVI web site.

12.4

 Data Export

12.4.1

Use of the EVI Solution may include the export of Your Data, which may require a license for export from the government (for example, the U.S.) that requires advance disclosure of the ultimate consignee and all parties to the sale, and prohibits diversion, transshipment, or re-exportation out of such country contrary to law and regulations. You must ensure that any data You provided to EVI does not contain any data that is controlled for export purposes by export regulations of the applicable country (U.S. or otherwise). You agree to furnish all documentation required by the government in connection with obtaining any required export license, and agree that unauthorized diversion, transshipment or re-exportation of the EVI Solution in violation of the export license or any applicable law shall not be permitted. This Section shall survive the termination of this Agreement.

12.5

 Independent Contractors

12.5.1

The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties hereto. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between You and either EVI or any employee or agent of EVI. EVI reserves the right to use third party providers in the provision of the EVI Solution.

12.6

 Taxes

12.6.1

All amounts payable under this Agreement are exclusive of taxes. You shall pay, or reimburse EVI in the event it has paid, any and all taxes imposed by any government upon the amounts payable under this Agreement whether invoiced by EVI or otherwise collected, including sales, use, value-added, goods and services, consumption, personal property, withholding, duties, fees, and levies of any kind, and penalties and interest related thereto, but excluding taxes imposed upon EVI’s net income, net worth, capital, or employees. As required by applicable law or upon request by EVI, You shall provide EVI with original or certified copies of all receipts or other evidence of tax payments made with respect to amounts payable under this Agreement. You and EVI shall cooperate in obtaining any reduced, concessionary or otherwise favorable tax rate or treatment available with respect to amounts payable under this Agreement.

12.7

 Notices

12.7.1

Except as otherwise specified, any notices permitted or required pursuant to the provisions of this Agreement to be given by a party will be given to the appropriate party at the address set out online during registration or in an applicable Order form. Except as otherwise specified, “Notice” will be deemed to have been given either upon personal delivery or if sent by certified or registered mail, postage prepaid or by overnight carrier, then when received, or if sent by electronic mail when received.

13. GOVERNING LAW

13.1

 This Agreement will be governed and construed in accordance with the laws of the State of Georgia without giving effect to conflict of laws principles, and the parties irrevocably consent to the jurisdiction of the state and federal courts in Georgia.

14. SURVIVAL

14.1

 If any provision herein is held to be invalid or otherwise unenforceable for any reason, the remaining provisions will continue in force without being impaired in any way. The terms that by their nature are reasonably intended by the parties to survive termination, including without limitation, the terms of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and this Section, shall survive the expiration or termination of this Agreement.

15. PRESS RELEASE/MARKETING/REFERENCES

15.1

 Upon acceptance of this Agreement, You and EVI agree to issue a joint press release announcing the nature of the relationship between the parties. Such release shall be approved by both parties prior to its issuance and such approval shall not be unreasonably withheld or delayed by either party. Additionally, You shall allow EVI to use Your name and logo in reasonable marketing efforts including lists and on the EVI website. Further, You agree to serve as a reference for a reasonable number of prospective EVI customers and potential investors.