TERMS AND CONDITIONS

1.                Definitions . Whenever used in this Agreement, the following terms will have the following specified meanings:

1.1.       “ Authorized User ” shall mean each unique person who is assigned a username and password to access the Program provided by KabelSync.

1.2.       “Location” shall mean the physical clinic or office space covered by this Agreement, which may consist of a single building or multiple addresses. The Signature Page (defined below) and any amendments thereto shall include the number and locations of the offices covered by this Agreement.

1.3.       “ Client-Furnished Items ” means the software, hardware, networks, peripheral devices and other items required for the successful use of the Software, but not furnished to Client by KabelSync.

1.4.       “ Confidential Information ” means any information that is proprietary or confidential or that a party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a Third Party). As used herein, Confidential Information shall mean ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, formulae, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, client lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the Discloser provides regarding third parties with a substantially similar confidentiality requirement. Confidential Information may be of a technical, business or other nature, including, but not limited to, information that relates to a party’s technology, research, development, products, services, pricing of products and services. Without limitation of the foregoing, any data or other information relating to the design, architecture, specifications, features, functions, performance, operation and other characteristics of the KabelSync Services will be presumed (e.g., without marking or other specific identification) to be the Confidential Information of KabelSync. However, Confidential Information does not include any information that: (a) was known to the recipient of the Confidential Information (the “ Recipient ”) before receiving the same from the party disclosing the Confidential Information (the “ Discloser ”) in connection with this Agreement; (b) is independently developed by the Recipient; or (c) is acquired by the Recipient from another source without restriction as to use or disclosure. By way of clarification, Client’s Confidential Information shall include its budget or expended amounts on advertising or promotion, strategies and tactics in connection with its business.

1.5.       “KabelSync Technology ” means KabelSync’s proprietary technology, including the Program, hardware, Internet operations design, software tools and applications, hardware designs, algorithms, software, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets, source codes and any related intellectual property rights throughout the world (whether owned by KabelSync or licensed to KabelSync from a third party) and also including any derivatives, improvements, enhancements or extensions of KabelSync Technology conceived, developed, or reduced to practice.

1.6.       “Client Data” shall mean any data, information or material provided or submitted by Client to KabelSync pursuant to this Agreement , including, without limitation, Clietn’s list of customers or patients. Such data belongs to Client.

1.7.       “ Content Customization ” means the service provided to Client by KabelSync whereby KabelSync prepares certain modifications to the Licensed Materials as listed on Schedule A of this Agreement. Although KabelSync’s proprietary processes remain the exclusive property of KabelSync, any customization or content that the Client considers owned by Client must be mutually agreed to by both KabelSync and Client in writing at time of use, upon this written agreement, it shall then become the property of Client and be considered a “Client Customization” (the “ Client Customizations ”), including any intellectual property rights therein, shall become the property of Client so long as Client otherwise complies with the terms of this Agreement, including, without limitation, the payment of all fees owed to KabelSync hereunder.

1.8.       “ Documentation ” means the user manuals, technical manuals, operating and service manuals, specifications, hardware configurations, operating environment, receipt of payment of any fees, and any other documentation relating to any Software furnished by KabelSync to Client under this Agreement or any Supplement.

1.9.       “ Enhancement ” means any correction, modification, enhancement, improvement, update, upgrade or new release of any Licensed Materials.

1.10.    “ Proprietary Rights ” means any patent, copyright, trademark, trade secret or any other intellectual property right protected under the laws of the United States of America or any state of the United States of America.

1.11.    “ Software ” means those components of the KabelSync software programs licensed for use by Client under this Agreement. The Software includes, but is not limited to, the following: (a) the modules, programs and other software as described on Schedule A hereto, and (b) any Enhancement to the Software described in (a) above. The Software does not include source code in any form and Client acknowledges that Client has no right to receive any source code.

1.12.    “ Systems ” means the computer system(s), server(s) and associated peripherals and software in the possession and control of Client or an Authorized User, all of which are Client-Furnished Items.

1.13.    “Service and/or Consulting” means the marketing management system service offered by KabelSync based on the Program and accessed by Client over the Internet and/or on strategy calls.

1.14.    “Licensed Material” includes, but is not limited to, all the marketing content designed and written by KabelSync and used in advertising both in print and in digital forms for the client.

1.15.    “ Unauthorized Use ” means any use, reproduction, distribution, disposition, possession, disclosure or other activity involving any Licensed Materials, Documentation or Confidential Information that is not expressly authorized under the License, this Agreement, or otherwise in writing by KabelSync.

2.                License .

2.1.       Grant of License . Subject to the restrictions and limitations set forth in Section 2.2 , Section 2.3 , and Section 5 of this Agreement, KabelSync hereby grants to Client a non-transferable, limited, and non-exclusive license (the “ License ”) to allow Client’s Authorized Users to (i) access and to use the Licensed Materials solely as set forth herein and solely for use by Authorized Users.

2.2.       General Restrictions and Limitations . The License sets forth the entirety of Client’s rights to use or otherwise deal with the Licensed Materials. Without limiting the generality of the foregoing, the License does not include the right to, and Client shall not directly or indirectly: (a) download, store, or replicate, or attempt to download, store, or replicate, any portion of the Licensed Materials except solely in connection with incorporation of the Licensed Materials in Client’s KabelSync System; (b) modify or create any derivative work based upon the Licensed Materials; (c) grant any sublicense or other rights to or rent or lease (i) any of the Licensed Materials, or (ii) this Agreement; (d) authorize any third party to grant any sublicense with respect to any Licensed Materials; (e) reverse engineer, disassemble, or decompile any portion of the Licensed Materials or attempt to discover or recreate any portion of source code associated with the Licensed Materials; (f) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Licensed Materials; (g) except in connection with the authorized incorporation of the Licensed Materials in Client’s KabelSync System, modify, translate, or merge any portion of the Licensed Materials with any other software or engage in or permit any Unauthorized Use of the Licensed Materials; or (h) upload or otherwise use software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, provide unauthorized access to, or limit the functioning of any portion of the Licensed Materials. Client acknowledges that the Program and its structure, organization source code and related matters constitute valuable trade secrets of KabelSync. Client shall not, (i) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Program, in whole or in part, (ii) modify or create any derivative works from the Program or any part thereof or separate the Program into its component parts, (iii) merge the Program with any other software, (iv) disclose to any third party any information or analysis relating to the Program, or (v) sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Program or any components thereof.

(a)   KabelSync shall retain all title rights and interest in and to the Program and any copies or modifications thereof, the KabelSync Technology and all code and logic which describes and/or comprises the Program and all copyright, trademark, patent, trade secret and other intellectual or proprietary rights therein. Client does not acquire any rights, express or implied, in the Program or the KabelSync Technology, other than those limited license rights to use the Program granted in this Agreement. (b)   Client grants to KabelSync the non-exclusive, worldwide, right to use, copy store, transmit and display Client Data solely to the extent necessary to provide the Service, Support and maintenance as requested by Client. (c)    Client grants consent to allow KabelSync to contact and email Clients staff and affiliates listed as Users in Clients KabelSync system, for the purpose of providing information about KabelSync and its products, services and other affiliated information. KabelSync may, from time to time, make contact with Users on behalf of other external business partners with regards to products and services which may be of interest to Client and its Users. KabelSync will not sell, rent or lease User information to any third party. KabelSync may disclose User information, without prior notice to Client, only if required to do so in accordance with applicable laws and/or in good faith belief that such action is deemed necessary or is required. (d)   Client understands that any content of marketing material produced by KabelSync is proprietary and copyrighted.  

2.3.       KabelSync’s Access to Client’s Computer Systems . Client will use commercially reasonable efforts to provide, or to arrange to provide, KabelSync with access to the Systems as reasonably required for KabelSync to perform its obligations and exercise its rights under this Agreement or any other agreement between Client and KabelSync relating to the KabelSync Services.

2.4.       Client-Furnished Items . Client will make all arrangements, as necessary, including with third parties, for the provision, installation, implementation, servicing, maintenance, repair, and support of the Client-Furnished Items, as required for the use of the Licensed Materials in accordance with this Agreement. Furthermore, Client acknowledges and agrees that the maintenance and updating of any data originating from Client and used in connection with the KabelSync Services shall be the sole responsibility of Client. KabelSync will not have any obligation to provide, install, service, maintain, repair, or support any Client-Furnished Items or Client data.

2.5.       Content Customization . KabelSync may provide the Content Customization services for the purpose of customizing the Licensed Materials to Client’s business, as agreed upon from time to time between the parties and as further described in Schedule A hereto.

3.                Management and Consulting Services . KabelSync shall provide to Client the Consulting and / or Management Services set forth on Schedule B attached hereto during the Term of this Agreement. Client shall provide KabelSync with cooperation in KabelSync’s performance of the Consulting Services hereunder, including make such information and personnel available to KabelSync and taking such actions as KabelSync shall reasonably request.

4.                Compensation .

4.1.       Fees . Client shall pay to KabelSync the fees, charges, and other amounts as specified in Schedule C , according to the payment terms specified therein, relating to and in consideration of (i) KabelSync’s grant of the License to Client, (ii) provision by KabelSync of the Consulting Services, (iii) provision by KabelSync of the Content Customization services, as applicable, and (iv) the user fees associated with each of Client’s Authorized Users who access and use the Licensed Materials.

4.2.       Late Charges; Interest . Any fees, charges, or other amounts due under this Agreement that are not paid when due will be subject to finance charges of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of such finance charges will not excuse or cure Client’s breach or default for late payment. Further, Client will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by KabelSync in its attempt to collect any amount that is not paid when due, whether in litigation or otherwise. KabelSync may accept any check or other payment in any amount without prejudice to KabelSync’s right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction.

4.3.       Taxes . The fees and other amounts payable to KabelSync under this Agreement do not include any duties, taxes, fees, or other amounts assessed or imposed by any governmental authority. Client is solely responsible for and shall directly pay or, upon demand by KabelSync, shall reimburse KabelSync for any and all such amounts paid by KabelSync or shall provide to KabelSync certificates or other evidence of tax exemption. Upon request by KabelSync, Client shall pay to KabelSync an amount equal to all such taxes imposed by any governmental authority, in which case, KabelSync will remit all such taxes to the appropriate governmental authority.

4.4.       Compliance with Laws . Client shall comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction, including, without limitation, the U.S. Export Administration Act, regulations of the U.S. Department of Commerce and other export controls and regulations of the United States of America.

4.5.       Client agrees that it will use the Service only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations, specifically, but not limited to, Health Insurance Portability and Accountability act of 1996 (HIPAA), Public Law 104-191. Client acknowledges that it is solely responsible to ensure that the information it and its Users transmit and receive complies with all applicable laws and regulations.

5.                Confidentiality and Proprietary Rights .

5.1.       Ownership . Client acknowledges and agrees that the Licensed Materials and Confidential Information delivered or disclosed to Client in connection with this Agreement constitute the valuable property of KabelSync and that KabelSync at all times retains complete and sole ownership thereof, including all right, title, and interest (and all Proprietary Rights) in and to all such Licensed Materials and Confidential Information. No title to or ownership of any Licensed Materials or Confidential Information, or any Proprietary Rights associated therewith, is transferred to Client or any other person under this Agreement. Without limiting the generality of the foregoing, KabelSync reserves all of its Proprietary Rights in the Licensed Materials and Confidential Information under all applicable laws for the protection of proprietary information including, but not limited to, laws relating to copyrights, patents, trade secrets, and trademarks.

5.2.       Trademarks and Trade Names . KabelSync reserves all right, title, and interest (including, without limitation, any Proprietary Rights) that it may have in any trademark, service mark, or trade name (any “ Mark ”) and associated goodwill. No license or right in any Mark or associated goodwill is granted or otherwise transferred to Client or any other person by virtue of this Agreement. Further, neither party will use any Mark of the other party in any advertising, promotional, marketing or other materials without the prior written consent of the other party; provided , however , that: (a) Client may list or otherwise identify KabelSync as the provider of the KabelSync Services under this Agreement; and (b) KabelSync may list or otherwise identify Client as a client of KabelSync and recipient of KabelSync Services under this Agreement.

5.3.       Copyright Notices . Client shall preserve intact and shall include all appropriate notices setting forth KabelSync’s Proprietary Rights in any copy or other reproduction of any and all portions of the Licensed Materials made by Client in accordance with the terms and conditions of the License.

5.4.       Confidential Information . The Recipient of any Confidential Information shall treat such Confidential Information provided to it the Discloser to be confidential and shall only use such Confidential Information as permitted under this Agreement. The Recipient shall hold in confidence and shall not disclose any and all Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “ Representatives ”) who have a need to know such Confidential Information in the course of the performance of their duties under this Agreement for the Recipient and who are bound by a duty of confidentiality substantially similar to that herein. The obligations imposed upon Recipient shall not apply to Confidential Information which is: (a) or becomes generally available to the public through no wrongful act of the Recipient; (b) already lawfully in the possession of the Recipient and not subject to an existing agreement of confidentiality; (c) received from a third party without restriction and without breach of a prior confidentiality obligation; (d) independently developed by the Recipient without reference to the Confidential Information; or (e) released pursuant to the binding order of a government agency or a court. Notwithstanding the foregoing, KabelSync may use aggregated, de-identified data compiled from Client’s use of the KabelSync Services to improve the KabelSync Services and provide market research and insights to third parties.

5.5.       Additional Protection of Proprietary Rights . Client shall not infringe or violate, and shall take appropriate steps and precautions for the protection of, KabelSync’s Proprietary Rights in the Licensed Materials and Confidential Information. Without limiting the generality of the foregoing, Client shall (a) prevent any Unauthorized Use of the Licensed Materials and Confidential Information, and (b) not make any portion of the Licensed Materials or Confidential Information available to any third party without the prior written consent of KabelSync. Client, upon notice of any Unauthorized Use of the Licensed Materials, shall immediately notify KabelSync of such Unauthorized Use. In the event of any Unauthorized Use relating to the activities of Client or any of its employees, agents, or representatives of any such entity, Client shall take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of any portion of the Licensed Materials and/or Confidential Information in the possession or control of the person or entity engaging in such Unauthorized Use. Client shall immediately notify KabelSync of any legal proceeding initiated by Client in connection with any such Unauthorized Use. KabelSync may, at its option and expense, assume control of such proceeding. If KabelSync assumes such control, KabelSync will have exclusive control over the prosecution and settlement of the proceeding, and Client shall provide such assistance related to such proceeding as KabelSync may reasonably request. Client shall assist KabelSync in enforcing any settlement or order made in connection with such proceeding.

6.                Term and Termination .

6.1.       Term . The term of the License granted by KabelSync to Client hereunder will commence upon the Effective Date of this Agreement and shall continue for an initial period of 1 month (the “ Initial Period ”), which term shall be automatically renewed for additional, consecutive one (1) month terms (each a “ Renewal Period ” and, together with the Initial Period, the “ Term ”), unless otherwise terminated in accordance with Section 6.2 through Section 6.7 hereof. The fees described in Schedule C may be adjusted according to KabelSync’s pricing schedule in place at the time of a Renewal Period unless otherwise negotiated at the time of renewal. KabelSync agrees to provide the adjusted Schedule C to Client not less than thirty (30) days prior to renewal.

6.2.       Non - Renewal . Either party may elect to not renew this Agreement by providing the other party with written notice of non-renewal at least thirty (30) days prior to the last day of the Initial Period or the then-current Renewal Period.

6.3.       Termination by Mutual Agreement . This Agreement may be terminated at any time by mutual written agreement between the parties. A phone call confirming the services to be cancelled and the timing of cancellation is required. This call includes but is not limited to a discussion on use and nonuse of licensed materials and returning any materials owned by client. Termination by client occurs 30 days from time of written notice.

6.4.       Termination by Client . This Agreement may be terminated at any time by client via written communication and phone call. A phone call confirming the services cancelled and the timing of cancellation is required. This call includes but is not limited to a discussion on use and nonuse of licensed materials and returning any materials owned by client. Termination by client occurs 30 days from time of written notice.

6.5.       Termination By Either Party for Material Breach .

6.5.1.       Notice of Material Breach or Default. If either party commits a material breach or default in the performance of any of its obligations under this Agreement (the “ Defaulting Party ”) then the other party (the “ Terminating Party ”) may give the Defaulting Party written notice of the breach or default, including, but not limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement, or any applicable supplement or schedule that are in breach or default, the action required to cure the breach or default, and that the Terminating Party intends to terminate the Term pursuant to this Section 6.4.1 if the breach or default is not cured within thirty (30) days after the Defaulting Party’s receipt of such notice (or such later date as may be specified in such notice).

6.5.2.       Notice of Termination. If the Defaulting Party fails to cure any material breach or default specified in any notice under Section 6.4.1 within thirty (30) days after receipt of such notice (or such later date as may be specified in the notice), then the Terminating Party may terminate this Agreement by giving the Defaulting Party written notice of termination.

6.6.       Termination by KabelSync for Cause . This Agreement also may be terminated immediately by KabelSync upon the occurrence of any of the following:

(a)              If Client fails to comply with any applicable laws or regulations.

(b)             If (i) a receiver, trustee or liquidator is appointed for Client, (ii) Client files a voluntary petition in bankruptcy, (iii) Client makes a general assignment for the benefit of creditors, (iv) Client files a petition seeking a reorganization or arrangement with creditors, or (v) the entry by a court of competent jurisdiction of any order, judgment or decree adjudicating Client as bankrupt or approving a petition seeking reorganization of Client or approving the appointment of a receiver, trustee or liquidator of Client, or of all or a substantial part of the assets of Client, and any such action or proceeding described in clauses (i) through (v) above is not dismissed within sixty (60) days of the date of filing.

(c)              If KabelSync, in its sole discretion, believes Client’s financial condition and corresponding ability to pay the fees associated with this Agreement is impaired for any reason.

(d)             If Client does not pay KabelSync within thirty (30) days from the date that any payment is due under the payment schedules set forth in the Agreement, the schedules to this Agreement, or in any other invoice or other similar document from KabelSync.

6.7.       Effect of Termination . If this Agreement is terminated pursuant to and in accordance with this Section 6 , then, unless otherwise specifically provided for in writing by the parties, the following shall apply: (a) the parties shall cooperate to effect an orderly, efficient, effective, and expeditious termination of each party’s respective activities under this Agreement; (b) the License and any other right granted to Client with respect to any Licensed Materials will terminate effective as of the effective date of the termination; (c) Client will cease use any and all of the Licensed Materials as of the effective date of termination and shall return to KabelSync any and all copies of the Licensed Materials and any Confidential Information of KabelSync in the possession or control of Client stored in any medium of Client or on any of Client’s Systems, or shall destroy all copies regardless of how stored and shall provide a certification from one of Client’s officers to KabelSync that the destruction of all copies has been completed within ten (10) days of the effective date of termination; (d) KabelSync will return to Client any and all Confidential Information of Client in its control or possession; (e) any and all liabilities accrued prior to the effective date of the termination will survive; (f) Client shall not be entitled to a refund of any fees paid to KabelSync; and (g) the parties’ respective rights and obligations under Sections 2.2 , 2.3 , 2.4 , 4 , 5 , 6 , 7 , and 8 (including all subsections of such Sections) of this Agreement will survive.

7.                Warranties; Disclaimer; Limitation of Liability; Indemnity; Remedies .

7.1.       Warranties . KabelSync makes the following representations and warranties to Client regarding its provision of the KabelSync Services under this Agreement: (i) the KabelSync Services have received all necessary approvals from applicable authorities of the State of Alabama n order to provide the certification and training programs contemplated by the KabelSync Services; (ii) all KabelSync Services   provided hereunder shall be performed in a diligent, professional, and workmanlike manner in good faith by qualified personnel; and (iii) KabelSync shall at all times utilize commercially reasonable virus protection software and shall conduct periodic reviews and updates thereof.

7.2.       Disclaimer . EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE, KABELSYNC DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, COMPLETENESS, OR USEFULNESS WITH RESPECT TO THE KABELSYNC SERVICES OR ANY INFORMATION CONTAINED OR PROVIDED THEREIN. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, KABELSYNC DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KabelSync DOES NOT WARRANT THAT THE KABELSYNC SERVICES, KABELSYNC’S SERVERS, OR ANY E-MAIL SENT FROM KABELSYNC ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KABELSYNC SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM, RELATED TO OR BELIEVED TO BE RELATED TO THE USE OF THE KABELSYNC SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR ANY OTHER DAMAGES.

THE KABELSYNC SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.” KABELSYNC SHALL NOT BE RESPONSIBLE FOR ERRORS OR OMISSIONS CONTAINED IN THE KABELSYNC SERVICES. CLIENT EXPRESSLY AGREES THAT USE OF THE KABELSYNC SERVICES AND RELIANCE ON THE INFORMATION CONTAINED THEREIN IS AT CLIENT’S SOLE RISK. KABELSYNC DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE AND THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE KABELSYNC SERVICES. CLIENT ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM USE OF THE KABELSYNC SERVICES. KABELSYNC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF ANY COMPONENT OF THE LICENSED MATERIALS OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN OR RELATED TO THE LICENSED MATERIALS.

MATERIAL CONTAINED IN THE KABELSYNC SERVICES MAY COME FROM OTHER SOURCES. KABELSYNC IS NOT RESPONSIBLE FOR THIS INFORMATION. SPECIFICALLY, KABELSYNC IS NOT RESPONSIBLE FOR ANY CLIENT-FURNISHED ITEMS. KABELSYNC IS NOT RESPONSIBLE FOR ANY CONTENT FROM ANY GOVERNMENTAL AUTHORITY. WHETHER THE INFORMATION COMES FROM KABELSYNC OR OTHER SOURCES, KABELSYNC SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM CLIENT’S USE OF THE INFORMATION CONTAINED IN THE KABELSYNC SERVICES.

KABELSYNC MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY CLIENT FURNISHED ITEMS, OR WITH RESPECT TO ANY SOFTWARE OR HARDWARE CREATED, DEVELOPED OR MANUFACTURED BY ANY THIRD PARTY.

7.3.       Limitation of Liability . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KABELSYNC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS DATA OR INFORMATION, LOSS OF USE OF THE SYSTEM(S) OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF CLIENT’S USE OR INABILITY TO USE THE KABELSYNC SERVICES, EVEN IF KABELSYNC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD REASONABLY HAVE BEEN FORESEEN BY KABELSYNC.

KabelSync’s entire liability under any provision of this Agreement shall be limited to the repair or replacement of the Licensed Materials or the refund of the fees, as specified in Section 7.3 below. This shall constitute KabelSync’s sole liability and obligation in the event of any claim arising out of its performance or non-performance of any provisions of this Agreement. Furthermore, in no event shall KabelSync be liable for errors, delays, or non-performance due to any events beyond its reasonable control, including, but not limited to, acts of God, failure of power or communication, changes in laws or regulations or other acts of governmental authority, strike, weather conditions, or transportation. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply to Client.

7.4.       Client Remedies . KabelSync shall use commercially reasonable efforts to correct any noncompliant Licensed Materials provided that Client gives KabelSync written notice of the noncompliance within sixty (60) days of commencement of Client’s actual use of the Licensed Materials. If, after the expenditure of commercially reasonable efforts, KabelSync is unable to correct the noncompliance, then KabelSync’s entire liability and Client’s exclusive remedy shall be, at KabelSync’s option, either: (a) the refund of an equitable portion (e.g., based upon the value of Client’s actual use of, or any benefits received by Client and/or its Authorized Users with respect to, the applicable Licensed Materials) of the fees and other charges paid by Client for such Licensed Materials; or (b) the repair or replacement of the Licensed Materials to normal operating conditions.

7.5.       Indemnification.

7.5.1.       CLIENT SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS KabelSync, ITS AFFILIATES, AGENTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO CLIENT’S USE AND AUTHORIZED USERS’ USE OF THE KABELSYNC SERVICES, INCLUDING WITHOUT LIMITATION ANY CLAIMS BY THIRD PARTIES BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY THAT IN ANY MANNER RELATE TO THE SOFTWARE, OR CLIENT’S USE THEREOF, OR WHICH CONSTITUTE CLAIMS FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING ALL COURT COSTS AND REASONABLE ATTORNEY’S FEES AND EXPENSES.

7.5.2.       KabelSync shall use commercially reasonable efforts to modify the allegedly infringing Licensed Material(s) to make it non-infringing, procure a license from the third party claiming infringement to permit Client to continue to use such Licensed Material(s), or provide Client with functionally equivalent and non-infringing Licensed Material(s).

8.                Miscellaneous Provisions .

8.1.       Entire Agreement . This Agreement represents the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements, understandings and communications, whether oral or written.

8.2.       Independent Contractor . The relationship between KabelSync and Client shall be that of independent contractor, and nothing herein shall constitute KabelSync as an employee, partner or agent of Client. KabelSync shall be solely responsible for determining the means and methods of performing the KabelSync Services. KabelSync is under no obligation to provide the KabelSync Services during any particular period of hours, days or weeks, or for any particular number of hours a day, or for any particular number of days a week. The KabelSync Services shall be provided on a non-exclusive basis and KabelSync retains the right to provide services to others or engage in other activities during the Term, provided that he does not breach any other provision of this Agreement. Nothing in this Agreement shall be deemed to create a fiduciary or agency relationship between KabelSync and Client or its affiliates or is intended to confer on any person or entity, other than the parties hereto or their respective successors and assigns, any relationship, rights or remedies under or by reason of this Agreement or as a result of the services to be rendered by KabelSync hereunder. To the fullest extent permitted by law, Client hereby waives and releases any claims that it may have against KabelSync and its affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by this Agreement.

8.3.       Assignment . Neither party shall assign or otherwise transfer or purport to assign or otherwise transfer (voluntarily, involuntarily, by operation of law or otherwise) this Agreement or any of its rights or obligations hereunder or any part thereof without the prior written consent of the other party, which consent will not be unreasonably withheld, except that KabelSync may assign any of its rights or obligations to any successor-in-interest or to an entity that acquires all or substantially all of its assets, all of its stock or equity in any form, or to an entity into which KabelSync is merged; provided, however, that KabelSync shall give Client prompt written notice thereof and the Person to whom the rights and obligations of KabelSync are assigned (the “Successor”) shall execute a written instrument (in a form acceptable to Client) whereby the Successor agrees to accept all of the rights and obligations of KabelSync under this Agreement and agrees to be bound by all of the terms and conditions of this Agreement in the same manner as KabelSync. For purposes of the foregoing, any change in control of Client (e.g., if Client is a corporation, any sale, assignment or transfer of securities entitled to elect a majority of the board of directors of said party, whether by merger or otherwise) or the sale of all or substantially all of the assets of Client, in any one or more transactions or events, will be deemed to constitute an assignment of this Agreement by Client requiring the written consent of KabelSync.

8.4.       Amendments; No Waiver . No provision of this Agreement may be amended, modified, revoked or waived except by a writing signed by a duly authorized representative of each of the parties hereto. Failure by either party to insist upon or to require performance by the other party of any of the provisions of this Agreement, or to claim a breach of this Agreement, will not be construed as a waiver or relinquishment of any of such party’s rights accruing under this Agreement to assert or to rely upon the provision, right, or remedy in that or any other instance, nor will it affect any subsequent breach hereof or the effectiveness of any provision of this Agreement or prejudice either party in any subsequent action; rather, the provision, right or remedy will be and shall remain in full force and effect.

8.5.       Severability . The invalidity or unenforceability of any part of this Agreement, for any reason, shall not prejudice or affect the validity or enforceability of the remainder, and if any time any one or more of the provisions of this Agreement (or any Section, sub-section or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason, the parties hereto shall use their best efforts to agree upon a replacement for such invalid or unenforceable provision in terms which correspond as closely as possible to the original provision, but if such replacement is unable to be accomplished then the same will be deemed omitted, and the validity and/or enforceability of the remaining provisions of this Agreement will not in any way be effected or impaired thereby.

8.6.       Parties Bound . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representatives, successors and permitted assigns. Client shall be responsible for all actions of the Authorized Users. Authorized Users shall be bound by this Agreement.

8.7.       Authority . The parties hereto represent and warrant that they have full power and authority to execute, deliver and perform this Agreement and such other instruments as required herein and to consummate the transactions contemplated hereby, and that, when executed, this Agreement shall be valid, binding and legally enforceable against each of the parties hereto.

8.8.       Notices . Any notice required or permitted to be given under the terms of this Agreement shall be sufficient if in writing and if sent postage prepaid by United States registered or certified mail, return receipt requested; by hand delivery; by Federal Express or other reputable national overnight courier service; or by confirmed telecopy (facsimile), to the designated representatives of the parties (or such other person as subsequently designated by the parties hereto in writing) at the addresses set forth on the first page of this Agreement or such other address as may be subsequently designated by the parties hereto from time to time by giving the other party written notice of the change.

8.9.       Governing Law; Forum . This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Alabama without regard to its rules relating to choice of law. Each party hereby irrevocably consents to the jurisdiction and venue of the federal, state and local courts located in Florence, Alabama in connection with any action arising out of or in connection with this Agreement or any of the transactions under this Agreement.

8.10.    Remedies; Equitable and Injunctive Relief . In the event of any breach of or default under this Agreement by one party, the other party may suffer irreparable harm and have no adequate remedy at law. In the event of any such breach or default, or any threat of such breach or default, the non-breaching party will be entitled to injunctive relief, specific performance and other equitable relief, without the necessity of showing actual damages or posting a bond or other security. Further, in any legal action or other proceeding in connection with this Agreement (e.g., to recover damages or other relief), the prevailing Party will be entitled to recover, in addition to any other relief to which it may be entitled, its reasonable attorneys’ fees and other costs incurred in that action or proceeding. The rights and remedies of the parties under this Section 8.9 are in addition to, and not in lieu of, any other right or remedy afforded to the parties under any other provision of this Agreement, by law or otherwise.

8.11.    Counterparts . This Agreement may be executed and delivered by facsimile or PDF signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

8.12.    Headings . The headings of the Sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

8.13.    Further Assurances . The parties hereto agree to execute and deliver such additional documents, agreements, notices, and other instruments as are reasonably necessary or required to effectuate the intent and purpose of this Agreement.

8.14.    Content Approval . KabelSync agrees to present all content and communication for approval to client prior to its use. Upon written approval by Client, Client is responsible for assuring all communication methods used with KabelSync system is HIPAA compliant and any local, state, federal laws are followed including, but not limited to any text messaging opt in requirements.