KIWI Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR TRIAL USE (IF ANY), PURCHASE AND ONGOING USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR OTHERWISE ELECTRONICALLY INDICATING YOUR ACCEPTANCE OR BY MANUALLY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on November 19, 2009. It is effective between You and Us as of the date of You accepting this Agreement (the "Effective Date").

1. Definitions

"Account Initiation Forms" means the online application form and/or online account confirmation form completed by the Client or its authorised representative to initiate the Services;
"Additional User Fee(s)" means the initial setup fee specified in the Account Initiation Forms, as amended from time to time as permitted herein, for each additional User not included in the Initial Setup Fee;
"Agreement" shall mean this Master Subscription Agreement between KIWI and the Client, as amended from time to time as permitted herein;
"Client", "You" or "Your" means the person identified as the account holder on the online Services application and/or order confirmation form;
"Data Retrieval Fee(s)" means the data retrieval fee specified in the Account Initiation Forms, as amended from time to time as permitted herein, applicable to each expired or terminated User account;
"Effective Date" shall have the meaning set forth above;
"Fees" means all fees associated with the Services and owed by the Client hereunder including, without limitation, the Initial Setup Fee, Additional User Fees, Monthly Fees, Patient File Fees and Data Retrieval Fee(s).
"Initial Setup Fee" means the initial setup fee per Client specified in the Account Initiation Forms;
"KIWI", "We", "Us" or "Our" means KIWI Software Solutions Inc., a business entity with an address at 13465 King George Highway, Surrey, British Columbia, V3T 2T8
"Monthly Fees" means the monthly fee payable in advance as specified in the Account Initiation Forms, as amended from time to time as permitted herein, for each User on an account, with the exception of the administrator for the account];
"Patient File Fees" means the fee payable in arrears as specified in the Account Initiation Forms, as amended from time to time as permitted herein, for each file created for each patient or customer of a User in conjunction with the Services;
"Services" means online access to a software system, KIWI, which includes all software components, services and web pages accessed via http://kiwirevolution.com or a subdomain thereof and hosted by a third party as a software-as-a-service system used by Our clients to assist them in tracking problems in, or related to, the foot and lower limb, and assessing, designing, manufacturing, fitting and modifying foot appliances and footwear for their patients;
"Subscription Term" means the period of time commencing on the Effective Date and ending on the date on which all User accounts have expired or have been terminated as permitted herein; and
"Trial Period" means a period of time immediately following the Effective Date during which the Client may use the Services without charge, if provided for in the Account Initiation Forms.
"User(s)" means individuals who are authorized by You to use the Services and who have been supplied user identifications and passwords by Your administrator and for whom all Fees are paid (subject to any Trial Period), and may include, but are not limited to, Your employees, an administrator for the account, Your consultants, contractors and agents.

2. Purchased Services.

Provision of Services. We will make the purchased Services available to You in accordance with the terms and conditions of this Agreement. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependant on any oral or written public comments made by Us regarding future functionality or features.
License Grants and Restrictions. Subject to the terms and conditions of this Agreement, We grant You a non-exclusive, personal, revocable license to access and use the Services for the purposes of tracking problems in, or related to, the foot and lower limb and assessing, designing, manufacturing, fitting and modifying foot appliances and footwear for Your patients. You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
User Subscriptions. The Services are purchased as monthly User subscriptions and may be accessed by no more than the specified number of Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
Service Modification. We reserve the right at any time and from time to time to modify the Services, upon notice to You, provided that such changes are reasonable and do not materially affect the provision of the Services under this Agreement. Such notice may be provided at any time by posting the changes at http://kiwirevolution.com or on the Client's subdomain of http://kiwirevolution.com through which the Services are provided. Your continued use of the Services following such notification indicates Your agreement to such modification of the Services.
Service Discontinuation. We reserve the right to permanently discontinue the Services (or any portion thereof) at any time upon 90 days' written notice to You. Such notice may be provided at any time by posting the changes at http://kiwirevolution.com or on the Client's subdomain of http://kiwirevolution.com through which the Services are provided. Your sole and exclusive remedy, and our sole and exclusive liability, with respect to any discontinued Services shall be to credit back any prepaid Fees applicable to any period of time following the effective date of the discontinuation of Services and by complying with Section 10(e) , provided that We will not charge Data Retrieval Fees for any account closures resulting from Our discontinuation of Services pursuant to this Section 2(e). Subject to the foregoing, We will not be liable to You or to any third party for any discontinuance of the Service.

3. Use of the Services.

Our Responsibilities. We will:
1. provide to You basic support for the Services at no additional charge, and/or upgraded support if purchased separately;
2. use commercially reasonable efforts to make the Services available 99.99% of the time (the "Service Level Standard");
3. Notwithstanding Section 3(a)(ii), the following shall not be a breach of the Service Level Standard:
  1. scheduled maintenance of the network and equipment, which will occur during a standard maintenance window of 12:00 a.m. to 6:00 a.m. Pacific Standard Time on Tuesdays and Thursdays, and where such maintenance will cause server unavailability for a period longer than one hour, We will schedule the maintenance at least 48 hours in advance and provide proper notice at least 8 hours in advance via the Services; or
  2. any unavailability caused by faulty, unreliable, slow, delayed or otherwise non-working internet connections to Your premises due to an Internet service provider or otherwise, such determination to be in the sole discretion of Us; or
  3. any unavailability cause by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees); and
4. provide the Services only in accordance with applicable laws and government regulations.
Changes to Service Level Standards. We expressly reserve the right to change the Service Level Standard specified in Sections 3(a)(ii) and 3(a)(iii) at any time, upon notice to You, provided that such changes are reasonable and do not materially affect the provision of the Services under this Agreement. Such notice may be provided at any time by posting the changes at http://kiwirevolution.com or on the Client's subdomain of http://kiwirevolution.com through which the Services are provided. Your continued use of the Services following such notification indicates Your agreement to such changes to the Service Level Standard.
Sole Remedy for Breach of Service Level Standards. In the event that We breach the Service Level Standard specified in Sections 3(a)(ii) and 3(a)(iii), Your sole and exclusive remedy and Our sole and exclusive liability for such breach will be an account credit of 5% of the Monthly Fees for each User for each day or portion thereof for which the Services are unavailable, to a maximum credit of 50% of the Monthly Fees in any calendar month.
Your Responsibilities. You will:
1. use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use;
2. use the Services only in accordance with the terms and conditions of this Agreement and any applicable laws and government regulations;
3. have all necessary right, power and authority to, or have obtained all necessary consents and rights in order to, provide all of the information that You provide through the Services, and for all other purposes of this Agreement;
4. maintain the confidentiality of Your information, account, Users' accounts and all passwords, and be, at all times, solely responsible for Users' compliance with this Agreement; and
5. be solely responsible for all information received, sent, saved, collected or distributed through the Service by You or in respect of Your account or password, however transmitted (the "Content") and therefore, You are entirely responsible for all Content that is developed, derived, received, sent, saved, collected, distributed or otherwise made available through the Services.
You will not:
1. make the Services available to any third party other than Users;
2. sell, resell, rent or lease the Services;
3. use the Services to store or transmit harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, infringing, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third party privacy rights;
4. use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or the web site or servers or networks connected to the Services;
5. interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or
6. attempt to gain unauthorized access to the Services or their related systems or networks.
Any use contrary to the terms of this Agreement, any fraudulent, abusive, or otherwise illegal activity by You or anyone using Your account related to the Services is grounds for temporary or permanent suspension or termination of Your account and the use of the Service, or any part thereof.
Your Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of times You are permitted to access the Services in a certain period of time, for Services that enable You to provide public websites, on the number of page views by visitors to those websites.

4. Fees and Payments for the Services.

User Fees. We charge the Fees, as amended from time to time as permitted herein, for access to and use of the Services. Fees shall be charged to You as follows:
1. Monthly Fees shall be charged on the Effective Date or at the end of any Trial Period should You decide to continue using the Services and on each monthly anniversary thereafter; and
We expressly reserve the right to change the Fees at any time, upon notice to You. Such notice may be provided at any time by posting the changes at http://kiwirevolution.com or on the Client's subdomain of http://kiwirevolution.com through which the Services are provided. Your continued use of the Services following such notification indicates Your agreement to pay such modified Fees in consideration for using the Services. We will not be liable to You or to any third party for any price change with respect to the Services.

Except as otherwise specified in this Agreement:
1. Fees are quoted and payable in Canadian or US dollars (as applicable);
2. Fees are based on subscribed Users and patient and customer files opened or created in conjunction with the Services; and
3. payment obligations are non-cancellable and Fees paid are non-refundable.
Invoicing and Payment. You will provide Us with valid and updated credit card information. By providing Your credit card information to Us, You authorize Us to charge such credit card for all Fees for the term of the subscription. We charge and collect in advance for access to the Service, except that Patient File Fees are charged and collected in arrears. We will automatically bill Your credit card each month or as otherwise mutually agreed upon. You are responsible for maintaining complete and accurate credit card, billing and contact information in the Services.
Declined Charges. In the event that any Fees charged to Your credit card are declined, We will issue a warning and You will be given a three (3) day grace period during which You may provide Us with a valid credit card number. After the three (3) day grace period has expired, We will again attempt to charge such Fees to Your credit card. In the event that such Fees charged to Your credit card are declined for a second time, We will issue a second warning and will provide You with an additional three (3) day grace period during which You may provide Us with a valid credit card number. After the additional three (3) day grace period has expired, We will again attempt to charge such Fees to Your credit card. In the event that such Fees charged to Your credit card are declined for a third time, Your account will be frozen whereby all Users will be denied access to the Services. In order for a frozen account to be re-activated and Users' access to the Services restored, You must pay to Us (i) all such Fees declined and owing and (ii) a re-activation fee equal to the Initial Setup Fee plus any Additional User Fees paid or owing for Your account. In the event that Your account remains frozen for a period greater than ninety (90) days, We will consider the account closed and will not be obligated to return to You any of Your Content until all past due Fees are paid in full.
Taxes. Unless otherwise stated, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
Trial Period. In the event that KIWI offers You a Trial Period for use of the Services, and if You choose not to continue Your use of the Services following the Trial Period, Your account will be considered closed, You will be charged and hereby agree to pay the Data Retrieval Fee for each terminated User account and We will make available to You for download a file of Your Content in extended electronic PDF format.

5. Proprietary Rights.

Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
Restrictions. You will not:
1. permit any third party to access the Services, except as permitted herein;
2. create derivate works based on the Services;
3. copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes;
4. decompile, build through observation or otherwise reverse engineer the software available for use through the Services; or
5. access the Services in order to:
  1. build a competitive product or service; or
  2. copy any features, functions or graphics of the Services.
Ownership of Your Content. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Content
License to Your Content. You hereby grant Us a non-exclusive, royalty-free, fully paid-up, world-wide license to store, copy, reproduce and display Your Content in connection with providing the Services under this Agreement.
Suggestions. You hereby irrevocably assign and We shall own any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

6. Confidentiality and Protection of Health Information.

Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Content; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Content) shall not include any information that:
1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
3. is received from a third party without breach of any obligation owed to the Disclosing Party; or
4. was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party:
1. the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and
2. the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Protection of Your Content. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content. We shall not:
1. modify Your Content;
2. disclose Your Content, except as compelled by law in accordance with the paragraph below (Compelled Disclosure) or as expressly permitted in writing by You; or
3. access Your Content, except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Protection of Personal Health Information.

In the event that any portion of Your Content includes personal health information ("PHI"), We acknowledge and agree that:
1. You may be subject to statutory obligations within Your jurisdiction, provincial or otherwise, with respect to privacy requirements of PHI (the "Privacy Requirements");
2. We supply the Services that may be used for the purpose of enabling You to use electronic means to access, store use, modify, disclose, retain or dispose of PHI;
3. it may be necessary for the purpose and in the course of providing the Services for Us to access and use any such PHI on behalf of You; and
4. information which is Confidential Information may also be (but is not necessarily) PHI and that where information is both PHI and Confidential Information, the requirements applicable to each category shall apply to it so as to subject it in each case to the more rigorous requirement.
To the extent that You are subject to Privacy Requirements, We shall at all times comply with the Agreement in such manner as to ensure that Our acts or omissions do not result in You being in violation of the Privacy Requirements.
Without limiting the generality of the foregoing, to the extent that You are subject to Privacy Requirements, We shall:

only access and use PHI for the purpose of providing the Services and only to the extent and for the time required where necessary to provide the Services and shall not access or use PHI for any other purpose, including, without limitation, on Our own behalf or for Our own purposes;
not disclose PHI, except as required for the purpose of providing the Services or except as required in accordance with applicable law or administrative ruling;
ensure that only such of Our employees and permitted subcontractors and agents as have a need to know PHI for the performance of the Services under this Agreement ("KIWI User") have access to PHI;
ensure that each KIWI User is familiar with the Privacy Requirements and how the Privacy Requirements apply to restrict access to and use of PHI by Us;
ensure that each KIWI User agrees to comply with the restrictions that apply to Us in relation to PHI;
take reasonable steps, through training (including mandatory training about the Privacy Requirements), confidentiality agreements and the application of appropriate sanctions, to ensure compliance by KIWI Users with this Section 6(e); and
ensure that upon termination of employment or affiliation with Us, each KIWI User's ability to access and use PHI, including, without limitation, any copies made of PHI for the purpose of providing the Services, is terminated and that such KIWI User is reminded of the continuing obligations of privacy and confidentiality with respect to PHI.

We shall adopt physical, technological and administrative safeguards which are reasonable in the circumstances for the protection of PHI.
If We receive any requests from individuals for access to or the correction of their PHI, We shall forthwith advise such individuals, in such form and terms as You may from time to time reasonably specify, that such request should be directed to You or the User that is the custodian for the applicable PHI.
You shall provide, and shall ensure that each User provides, no more PHI to Us than will be necessary for the purpose and in the course of providing the Services, and You shall indemnify, defend and hold Us harmless with respect to any third party claim and/or any loss relating to Your failure to do so.
Subject to You agreeing to comply with obligations of confidentiality and non-disclosure acceptable to Us, You shall have the right, on reasonable notice and at the Your expense and with no disruption to Our business, to visit and inspect any location where We access or use PHI, to examine all equipment used, and all records maintained, in connection therewith, to make copies of such records, to question Our personnel (including any permitted subcontractors, suppliers and agents), and otherwise to audit and verify, both physically and electronically, compliance by Us with this Section 6(e). Notwithstanding the foregoing, You have no duty to make any such visit, inspection, examination, audit or verification.
If You receive any inquiry or complaint relating to PHI, You shall notify, at the first reasonable opportunity, the User that is the custodian of the applicable PHI of the inquiry or complaint in such form and manner, and with such particulars, as You may from time to time specify, and if a User notifies Us that it requires assistance in investigating or responding to any inquiry or complaint, whether or not first received by Us, We shall provide reasonable co-operation, at Your expense (for greater certainty, including Our legal fees and expenses) and to the extent reasonably required in light of the inquiry or complaint, by furnishing the User with complete information concerning Our access and use of PHI, including responding, if requested to do so, to any inquiry by a government agency or other authority and/or to any complaint in connection with the Privacy Requirements. If any inquiry or complaint (whether or not first received by Us) gives rise to proceedings before a court, regulatory or other authority, We shall, at Your expense (for greater certainty, including Our legal fees and expenses), provide reasonable co-operation in the conduct of such proceedings and shall attend hearings and assist in securing and giving evidence and obtaining the attendance of witnesses.
We shall notify You at the first reasonable opportunity in writing in the event of the theft, loss, destruction or unauthorized access, use, transfer, disclosure, copying or modification of PHI or in the event that We have reasonable grounds to suspect that any such unauthorized activity is likely to occur.
In the event of any termination of this Agreement, We shall forthwith return, as directed by You, PHI of which You are the custodian and which We are accessing or using for the purpose of providing the Services and shall keep no copies of such PHI, except to the extent required by Our reasonable archival policy and otherwise as permitted by applicable law. We shall provide to You, on written request, an officer's certificate attesting to the foregoing having been completed.

7. Warranties and Disclaimers.

Mutual Warranties. Each party represents and warrants that: (i) it has the legal power to enter into this Agreement; and (ii) that this Agreement will constitute a legal, valid and binding obligation of such party enforceable against it in accordance with its terms. You hereby represent and warrant that You have obtained adequate consent from Your patients or customers, as necessary, to use their information, including PHI, in conjunction with the Services
No Warranties. The information, data, any content and all services provided by Us are provided to You on an "as-is" and "as available" basis. Except as expressly provided herein, We expressly disclaim and make no representations, conditions, guarantees or warranties of any kind, express or implied, statutory or otherwise, including, but not limited to, any warranties of merchantability or fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.

YOU EXPRESSLY AGREE THAT YOUR ACCESS AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND WE WILL IN NO WAY BE LIABLE TO ANYONE FOR SUCH RELIANCE.

WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ABOUT THE ACCURACY, SUITABILITY, RELIABILITY, COMPLETENESS, RELEVANCE, TIMELINESS, OR AVAILABILITY REGARDING THE CLINICAL USE OF THE SERVICES USED BY YOU OR ANY USER IN TREATING OR ADVISING PATIENTS OR PERFORMING ANY MEDICAL PROCEDURE. YOU ACKNOWLEDGE THAT THE SERVICES AND OUR CONTENT ARE TOOLS TO ASSIST YOU TO PROVIDE HEALTH CARE SERVICES AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, MEDICAL CARE, DIAGNOSIS OR TREATMENT OBTAINED FROM A PHYSICIAN OR OTHER PROFESSIONAL HEALTHCARE PROVIDER. YOU ASSUME ALL RISKS ASSOCIATED WITH THE CLINICAL USE OF THE SERVICES. YOU ACKNOWLEDGE THAT PERFORMANCE OF DATA-RELATED ACTIVITIES IN ASSOCIATION WITH ANY DATA OR INFORMATION (INCLUDING YOUR CONTENT) THAT YOU MAY (A) OBTAIN FROM US, (B) DEVELOP INDEPENDENTLY OR (C) USE IN COOPERATION WITH THE SERVICES, IS YOUR SOLE RESPONSIBILITY.

8. Mutual Indemnification.

Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (a "Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable legal fees incurred by, You in connection with any such Claim; provided, that You (i) promptly give Us written notice of the Claim; (ii) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (iii) provide to Us all reasonable assistance, at Our expense.
Indemnification by You. You shall defend Us against any Claim (i) made or brought against Us by a third party alleging that Your Content, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, (ii) arising from or relating to any breach of this Agreement caused by any act or omission of You or any User, (iii) arising from or relating to Your misrepresentation or breach of warranty contained in this Agreement and (iv) that may be advanced by any User or any other third party including Your patients or customers relating in any way to the Services, including with respect to Your Content. You shall indemnify Us for any damages finally awarded against, and for reasonable legal fees incurred by, Us in connection with any such Claim; provided, that We (i) promptly give You written notice of the Claim; (ii) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (iii) provide to You all reasonable assistance, at Your expense.
Exclusive Remedy. This Section 8 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.

9. Limitation of Liability.

Limitation of Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING, EXCEPT WITH REGARDS TO DAMAGES ARISING PURSUANT TO SECTION 8(B), OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR THE SERVICES).
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY, EXCEPT WITH REGARDS TO DAMAGES ARISING PURSUANT TO SECTION 8(B), FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. Term and Termination.

Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or have been terminated.
Term of User Subscriptions. User subscriptions commence on the date You or Your administrator establish User accounts using the Services and continue on a month-to-month basis until terminated as set forth herein. You or Your administrator may terminate individual User subscriptions at any time by deleting the User's account information and access to the Services. Following the effective date of termination, You will be charged and hereby agree to pay the Data Retrieval Fee for each terminated User account and We will make available to You for download a file of Your Content in extended electronic PDF format.
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid Fees covering the remainder of the term of all User subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid Fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any Fees payable to Us for the period prior to the effective date of termination.
Return of Your Content. Within 30 days after the effective date of termination of a Services subscription, We will make available to You for download a file of Your Content in extended electronic PDF format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Content and shall thereafter, except to the extent required by Our reasonable archival policy and otherwise as permitted by applicable law, delete all of Your Content in Our systems or otherwise in Our possession or under Our control. You hereby agree to pay the Data Retrieval Fee for each User account for the retrieval of Your Content in accordance with a request made by You under this Section.
Surviving Provisions. Sections 4 (Fees and Payments for the Services), 5 (Proprietary Rights), 6 (Confidentiality and Protection of Health Information), 7 (Warranties and Disclaimers), 8 (Mutual Indemnification), 9 (Limitation of Liability) and 11 (General Provisions), and paragraphs , 10(d), 10(e) and 10(f) in Section 10 shall survive any termination or expiration of this Agreement.

11. General Provisions.

Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any Fees or charges due Us under this Agreement following Your breach of Section 4.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
Entire Agreement. This Agreement, including all schedules and exhibits attached hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as set forth in Section 2(d) with respect to modifying the Services, Section 2(e) with respect to discontinuing Services, Section 3(b) with respect to modifying the Service Level Standard and Section 4(a) with respect to changing the Fees, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless agreed in writing and electronically or manually executed by authorised representatives of both parties.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without reference to its conflicts of laws principles.