PromptALERT Incorporated Trial Offer & SUBSCRIBER TERMS & CONDITIONS

promptALERT Incorporated (identified as "Patient Prompt" on the Order Form) and the Subscriber (as identified on the Order Form) agree to the following promptALERT Inc. ' s Subscriber Terms and Conditions, as may be supplemented by any additional terms attached hereto (the "Terms and Conditions"). The Order Form ("Order Form") executed by the Subscriber and these Terms and Conditions are collectively referred to as the "Agreement".

1. DESCRIPTION OF SERVICES

PromptALERT shall provide to you use of Patient Prompt (the “Service”) conditional upon acceptance and compliance by the Subscriber with the Order Form and these terms and conditions of the Agreement. The agreement is a 14 Day Free Trial offer.

The Trial Offer is subject to terms & conditions stated below excluding section 2C. to 2G. of this agreement.

2. PRICES & FEES

A. FEES: The 14 Day Trial is a free offer. All calls made during the trial offer period are at no charge to the subscriber. There are no additional charges or hidden fees associated with this offer.

B. CONTINUATION OF SERVICE: The subscriber will be asked to acknowledge a continuation of service, 3 business days prior to expiration of the Trial Offer period. Should the subscriber wish to continue with said service it is understood that they agree to the following conditions & fees:

One Time Set Up Fee: $TBD

Monthly Fee: $75.00 (includes up to 300 voice, text/sms, or email messages per month.)

Cost Per Message: $0.25 cents per message up to 2,000 messages in a one month period.

Volume Saving: $0.20 cents per message should the volume exceed 2,000 messages in one month.

Service is a Month to Month Service and may be cancelled at anytime with 30 day written notice by the subscriber.

C. BILLING: The Subscriber shall pay the Fees for the Service by credit card or by electronic funds transfer and such a fee of Fifty Dollars ($50.00) shall be charged to the Subscriber in addition to any fees incurred by promptALERT for any chargebacks or non-approved credit card transactions. Any payment not received from the Subscriber by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Subscriber shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.

Unless otherwise stated, as a condition to the right to use the Service, the Subscriber must provide satisfactory credit card or electronic funds transfer information prior to the commencement date of this Agreement. In the event that the payment information of the Subscriber changes, the Subscriber must provide promptALERT with a new valid credit card number within five (5) business days (a business day for the purposes of this Agreement is defined as a day in which the New York Stock Exchange is open). The Subscriber acknowledges and agrees to allow promptALERT, from time to time, to undertake steps to determine whether the credit card number provided is a valid credit card number. Failure to provide a valid credit card number or a credit card with sufficient credit limit available as set out herein may result in the termination of the Agreement subject to the terms herein. THE SUBSCRIBER, AND NOT PROMPTALERT, IS RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO THE SUBSCRIBER’S CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY THE SUBSCRIBER.

D. TAXES: The Subscriber shall be responsible for all sales, use, value added, or other taxes or duties, as applicable, payable with respect to the Services or otherwise arising out of or in connection with this Agreement, other than promptALERT ' s income taxes. If promptALERT pays such taxes on the Subscriber ' s behalf, the Subscriber agrees to reimburse promptALERT for such payment immediately upon demand. If any tax in the nature of withholding tax is payable on any sums payable to promptALERT under this Agreement, the Subscriber shall pay promptALERT such amount as is necessary to ensure that the net amount received by promptALERT after such withholding shall be equal to the amount originally due, unless the Subscriber provides promptALERT with a valid exemption certificate authorized by the appropriate taxing authority.

E. EXPENSES: The Subscriber is responsible for all of its Internet connection charges, calling activities or phone bills related to the use of Services.

F. CHANGES IN FEES:. promptALERT may, in its sole discretion, change prices, terms and conditions of this Agreement to be effective (a)upon the next following Renewal Term provided promptALERT gives not less than 60 days written notice to Subscriber of such changes prior to the commencement of such Renewal Term; and (b) immediately, in the event of a change to promptALERT ' s cost of delivery of the Services or as a result of (i) a change in any applicable law, regulation, or similar governmental action, or (ii) a ruling by a court of competent jurisdiction that affects the delivery of the Services to Subscriber.

G. QUOTATIONS: Unless otherwise indicated, promptALERT Inc. ' s quotations are valid for thirty (30) days from date of issuance.

3. INTELLECTUAL PROPERTY

A. LICENSE GRANT: PromptALERT grants the Subscriber a nonexclusive, non-sublicenceable and nontransferable license to use the Service during the Term, or renewal Term. Provided that Subscriber has paid all fees owing pursuant to this Agreement when due, Subscriber will be entitled to receive at no additional charge, (A) updates to the then current version of the Service (B) new versions of the Service when promptALERT releases and makes updates generally available from time to time to its Subscribers. If a version to be released substantially alters or adds to the functionality and features of the then current version of the Service, promptALERT reserves the right to charge a price (as determined in its sole discretion) in respect of that version to be released. This Agreement does not entitle the Subscriber to any hard-copy documentation or other printed materials, or telephone assistance to the Service, unless specified in writing in the Order Form

.

PromptALERT may offer support for the Services as outlined in the Order Form. In such an event, the Subscriber is only entitled to the support listed in the Order Form upon the terms and conditions offered by promptALERT.

Subject to the terms and conditions of this Agreement, promptALERT grants to the Subscriber the right to use the Service and to integrate the Service into the Subscriber’s applications solely for its own internal use and for no other purpose whatsoever.

B. LICENSE RESTRICTIONS: Except as otherwise expressly permitted in this Agreement, or in any other agreement to which promptALERT is a party, the Subscriber may not: (i) modify, translate or create any derivative work of the Service; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or underlying ideas for the Service (except to the extent applicable laws specifically prohibit such restriction); (iii) copy, install or use the Service on any Server not listed in the Order Form without promptALERT’s prior written consent; (iv) redistribute, encumber, sell, rent, lease, sublicense, or assign or commercially exploit or make available to third parties or otherwise transfer rights to the Service to any other persons or to any other Server not listed in the Order Form; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Service; or (vi) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Subscriber in connection with use of the Services, which may include without restriction, the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), similar provincial or federal legislation in Canada and other analogous legislation in the jurisdictions applicable to the Subscriber, enacted from time to time, and other laws applicable to Subscriber related to privacy, publicity, data protection.

C. PROPRIETARY RIGHTS: All right, title and interest to the Service, including all intellectual property in the Service (including without limitation, copyrights, patents, trade secrets, trade marks, moral rights and other intellectual property rights, in and to the Service, all modifications, changes, enhancements, or additions thereto) or any know-how developed during the course of this Agreement shall remain property of promptALERT. To the extent Subscriber acquires any intellectual property rights in the Service, Subscriber assigns such rights to promptALERT and waives any moral rights it may have in the intellectual property thereto and in favour of promptALERT. The Subscriber acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with promptALERT’s ownership rights with respect to the Service. The Subscriber further acknowledges and agrees that the Service is the property of promptALERT and that the only right promptALERT has with respect to the Service and related material is to use them in accordance with the terms of this License.

All right, title and interest in any Content compiled by the Subscriber communicated via the Service or any other application shall remain the sole property of the Subscriber. The license granted under this Agreement gives promptALERT no rights to such Content.

4. SUBSCRIBER ' S ACKNOWLEDGMENTS

A. Multiple Users: As the Licensee you also acknowledge and agrees to cause all persons who use the Service through the your computer or any computer belonging to your, your affiliates, subsidiaries, parents or any other non-arm’s length party to review and comply with the terms and conditions of this Agreement. You further acknowledges and agree that as the Licensee you are solely responsible and liable for any and all breaches of the terms and conditions of this Agreement, whether such breach is the result of use of the Service by your or by any other user of persons using the Service through the your license.

B. COMPUTER EQUIPMENT: The Subscriber acknowledges and agrees to these requirements and further agrees that it will not be entitled to receive technical support relating to any issues other than the Service as unmodified. PromptALERT does not represent or warrant that a non-recommended configuration will enable the Subscriber to successfully access, operate or use the Service or the installation of any hardware or software to meet the minimum computer requirements will not cause damage to the Subscriber’s computer, peripherals, software or data.

C. ACCESS TO THE SERVICE: Portions of the Service shall be accessed through the Internet. The Service does not include Internet access. The Subscriber acknowledges and agrees to purchase and maintain Internet access at its own expense and is solely responsible for any expense with respect to Internet access. The Subscriber further acknowledges and agrees to compensate promptALERT for the Service as set forth in the Order Form even if the Subscriber does not have available Internet access.

Subscriber acknowledges and agrees that it is beyond the reasonable control of promptALERT to ensure that use of the Internet or the Service will be free of virus, worms, Trojan horse or disabling devices or other code that manifests contaminating or restrictive properties and promptALERT shall not be liable for any loss or damage with respect to any damage incurred by the Subscriber, directly or indirectly, when it accesses the Internet.

D. NO CRITICAL APPLICATIONS: The Subscriber acknowledges and agrees that the Service is not designed, intended, authorized or warranted to be suited for hosting life-support application or other critical applications where failure or potential failure of the Service can cause injury, harm, death or other grave problems, including, without limitation, loss of hospital life-support systems, and delays in getting medical care or other emergency services. The Subscriber acknowledges and agrees that use of the Service to support such application is fully at its own risk and that the Subscriber assumes all risk arising out of such use.

E. CONTENT: The Subscriber acknowledges that promptALERT assumes no responsibility for and exercises no control over the Content communicated via the Service as provided by the Subscriber (the "Content"). promptALERT shall not be liable for any loss or damage arising out of inaccurate and/or incomplete Content provided by the Subscriber. promptALERT makes no representation or warranty that the Service shall accurately contact or connect with any third parties as directed by the Subscriber or that such Content such be communicated in its entirety.

F. TERMINATION IN EVENT OF BREACH: The Subscriber acknowledges and agrees that, in addition to the termination rights set out herein, promptALERT may, in its sole discretion, suspend or terminate one or more features of the Service without notice or refund if the Subscriber is in breach any term or condition of this Agreement.

G. SENDING SUBSCRIBER INFORMATION: promptALERT and/or its suppliers may send the Subscriber information about the Service via email addresses provided by the Subscriber. The Subscriber acknowledges that it provides its informed consent to said communications.

5. SUBSCRIBER ' S OBLIGATIONS

A. PROHIBITED USE: The Subscriber agrees that it shall not use the Service or other features of the Service to, directly or indirectly:

1. copy, distribute or sublicense any software promptALERT provides or makes available to the Subscriber;
2. alter, modify or tamper with the Service or other feature(s) of the Service;
3. resell the Service or provide the Service to any third party; and
4. in a manner that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of a third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offence, under any applicable law or regulation.

In addition to promptALERT’s termination rights set out elsewhere in this Agreement, the Subscriber may terminate this Agreement if the Subscriber engages in one or more of the above-prohibited activities. Subscriber agrees to indemnify and hold harmless promptALERT and its officers, directors, shareholders, employees and agents from and against all third party claims arising due to a breach of any of the provisions of this Section.

B. SECURITY: The Subscriber is solely responsible for taking the necessary precautions to protect itself and its equipment, software, files and data against any and all risk inherent in the use of this shared resource. Without limiting the foregoing:

1. Subscriber is solely responsible for the security of any device which the Subscriber chooses to connect to the Service, including any data stored on such device;

2. Subscriber is responsible to ensure that others do not gain unauthorized access to the Subscriber’s computer by taking the appropriate security measures;

3. The Subscriber is solely responsible for any and all Content transmitted. PromptALERT makes no representations or warranties with respect to or connection with the security or confidentiality of the data transmission; and

The Service are accessed via a personalized URL which requires passwords and login ID’s, identification devices or codes to access (collectively, “Access Device”) as set forth in the Order Form. The Subscriber understands that possession or knowledge of an Access Device may result in that person being able to access the Service. The Subscriber acknowledges and agrees that the maintenance of the security of the Service is the Subscriber’s responsibility and promptALERT and its suppliers are released from any liability resulting from unauthorized access into the Service not caused by our negligence. . In no event shall promptALERT be liable for any loss of Content or other claims, losses, actions, damages, suits or proceedings to the extent the same arose from unauthorized access to the Licencee ' s account by obtaining an Access Device caused by a negligent or wilful act of the Subscriber, or arising out of or otherwise relating to the Subscriber’s failure to take appropriate security measures. The Subscriber is responsible for the entire cost of any service, repairs or connections of and to any computer using the Service which may be necessary as a result of the Subscriber’s failure to take appropriate security measures.

6. SERVICE MONITORING AND MAINTENANCE

A. MONITORING: promptALERT has no obligation to monitor Content, the effectiveness of the Content or the Subscriber’s use of the Service. Notwithstanding the foregoing, the Subscriber acknowledges and agrees that promptALERT may monitor and investigate Content being transmitted or distributed on the Service from time to time to disclose any information as necessary to: satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal action against Subscriber, operate the Service properly, ensure or enforce compliance with this Agreement, or protect promptALERT or other users of the Service.

B. BANDWIDTH RESTRICTION: promptALERT reserves the right to establish space and/or bandwidth limits for the Content transmitted on the Service. At the option of promptALERT, Content that exceeds these limits may not be delivered and no loss or damage shall result in such an event.

C. MAINTENANCE: PromptALERT and/or its suppliers may perform scheduled and unscheduled maintenance to the Service. PromptALERT shall make commercially reasonable arrangements to inform the Subscriber of said maintenance and times. The Service may not be available during such times and promptALERT makes no warranty or guarantee that the corrections of any errors in the Service will be completed during maintenance. The Subscriber acknowledges and agrees that promptALERT shall not be liable for any claims, losses, actions, damages, suits or proceedings resulting from, arising out of or otherwise relating to any interruption or cessation of the Service as a result of any and all maintenance conducted.

7. TERM AND TERMINATION

A. TERM: The Term of this Agreement is as set forth in the Order Form and shall be renewed automatically in accordance with the Order Form and shall renew unless notice of non-renewal is given by the Subscriber prior to the expiration of the initial Term set forth in the Order Form.

B. TERMINATION: Subscriber shall have a thirty (30) day period ("Acceptance Period") from the date of this Agreement to evaluate the Services to determine whether such Services meets the Subscriber ' s business needs and/or requirements. At any time during the Acceptance Period, Subscriber may, at its option and for any reason whatsoever terminate this Agreement upon written notice (the "Termination Notice") to promptALERT and cease to use the Services. In the event Subscriber elects to terminate this Agreement during the Acceptance Period, Subscriber ' s sole obligation to promptALERT (except in the event the Subscriber breaches the terms and conditions of this Agreement,) will be to uninstall the software related to the Service at its sole expense. Any additional Fees pre-paid by Subscriber to promptALERT shall be refunded within the Termination Notice Period. If no Termination Notice has been received by promptALERT prior to the end of the Acceptance Period, the Services shall be deemed acceptable to Subscriber ' s business needs and this Agreement will be terminable in accordance with the provisions set out below. For greater certainty, during the Acceptance Period, all provisions of this Agreement including without limitation Sections 3(B),3(C),8,11,12 and 13 of the Terms and Conditions shall apply.

Subject to the provisions of Section 7(C) of the Terms and Conditions hereof, this Agreement may be terminated:

1. by either party if the other materially breaches this Agreement, and such breach is not cured within ten (10) days after written notice of such breach is given by the non-breaching party; and
2. This Agreement may be terminated by either party upon the occurrence of any of the following events, which shall be deemed to be a breach of the terms of this Agreement:

(a) if either party fails to perform any of its obligations, or there is a material breach of any of the provisions of this Agreement; provided that the party terminating this Agreement shall first have given prior written notice to the other of its intent to terminate, together with details of the default causing the termination, and the party receiving such notice shall have been given ten (10) days to cure any such default; or

(b) immediately, if either party (A) ceases or threatens to cease to carry on its business, commits an act of bankruptcy, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or (B) is subject to any proceeding that is taken to (i) compromise or make an arrangement with that party ' s creditors, (ii) obtain an order to assign that party into bankruptcy or winding-up that party, or (iii) obtain an order to appoint a receiver over any part of that party ' s assets, and in each case, such proceeding are not dismissed within ten (10) days of such proceeding being initiated

Any termination by promptALERT shall be in addition to and without prejudice to such rights and remedies as may be available including, without limitation, injunctive and other equitable remedies.

C. EFFECT OF TERMINATION: In the event of termination of the Agreement for any reason, the Subscriber shall have no further right to the Service and shall grant to promptALERT access at reasonable business hours to any location where the Service may be located in order to remove any software associated with the Service and which belong to promptALERT.

Further, upon termination:

(a) each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control;

(b) Provided that the Term of the Subscriber ' s Agreement is for twelve (12) months or more, in the event of termination of the Agreement by the Subscriber without cause (and subsequent to the Acceptance Period expiration) , the Subscriber agrees to pay to promptALERT as compensation for early termination of the Agreement and not as a penalty, an amount equal to twenty-five percent (25%) of the yearly subscribed package fee as set out in the Order Form if the Agreement is terminated within twelve (12) months of the commencement date or ten percent (10%) of the yearly subscribed package fee in the year of termination if the Agreement is terminated on or after twelve (12) months after the commencement date. If the Subscriber ' s Term is less than a one year period there shall not be a termination penalty in the event of termination of the Agreement by the Subscriber.

8. CONFIDENTIALITY

In the performance of this Agreement or in contemplation thereof, promptALERT and the Subscriber may each have access to know-how, trade secrets and confidential information owned by the other ("Confidential Information"). Each party shall keep all Confidential Information with the same care as it would keep its own proprietary information and shall only disclose Confidential Information to its respective employees on a need to know basis. The foregoing shall not include Confidential Information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; or (d) is required by law or order of the court or other governmental authority to be disclosed provided that the parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

9. TRANSMISSION OF NOTIFICATION

The Service may include notification by promptALERT on behalf of the Subscriber to third parties based on Personal Information (as the term is defined in the Personal Information Protection and Electronic Documents Act) provided by the Subscriber or located in the Subscriber’s electronic storage device(s). The Subscriber represents and warranties to promptALERT that it has obtained informed consent to the use, collection and disclosure of Personal Information collected by the Subscriber for promptALERT’s use pursuant to the Service.

promptALERT its affiliates, subsidiaries, suppliers, reseller and agents and each of their respective directors, officers, employees, agents and professional advisors shall at all time be indemnified and saved harmless by the Subscriber from and against all claims whatsoever (including costs, judgments, charges and expenses including legal fees in connection therewith) brought, commenced or prosecuted against the Subscriber for or in respect of any act, deed, matter or thing whatsoever made, done acquiesced in or omitted in or about or in relation to any and all liabilities, costs, charges and expenses which promptALERT sustains or incurs in or about or in relation to the Subscriber’s violation or breach of the collection, use and disclosure of Personal Information provided by the Subscriber or located in its electronic storage device(s).

10. PRIVACY

promptALERT shall collect, use and disclose information about the Subscriber in order to contact the end-user about the Service, invoice the Subscriber, answer inquires from individuals wishing to contact the Subscriber, provide technical support and field inquiries about the Service, accumulate demographic non-personalized information about the Subscriber’s clients, communicate new business development initiatives and generally to comply with the law.

The Subscriber agrees that it has given its informed consent for the collection, use and disclosure of the Subscriber’s information as described herein.

promptALERT represents and warrants that it shall not use the Subscriber’s information for any other purpose than stated in this Agreement.

The Subscriber represents and warrants that it has not or shall not violate the Personal Information Protection and Electronic Documents Act, the Personal Health Information Protection Act (Ontario), or other analogous acts and regulations, such as the Health Insurance Portability and Accountability Act (USA), to which the Subscriber is, or may be, subject to in carrying forth its obligations under this Agreement.

11. DISCLAIMER OF WARRANTY

THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROMPTALERT DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE INTERNET, SUBSCRIBER’S CONNECTION TO THE INTERNET, THE EQUIPMENT USED TO ACCESS THE SERVICE, THE SERVICE OR ANY OTHER FEATURE OF THE SERVICE. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY AND PERFORMANCE OF THE SERVICE IS WITH THE SUBSCRIBER. FURTHER, PROMPTALERT DOES NOT WARRANT THAT ANY CONTENT TRANSMITTED THROUGH THE SERVICE WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM , TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME OR TRANSMITTED ON A CONFIDENTIAL BASIS. THERE ARE NO EXPRESS OR IMPLIED, WARRANTIES OR CONDITIONS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE OR THE CONTENT PRODUCED, TRAMSMITTED OR DISTRIBUTED BY THE SERVICE. FOR GREATER CERTAINTY ALL IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, ARE , TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. PROMPTALERT DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICE’S OPERATION WILL BE ERROR FREE .

NO ORAL OR WRITTEN INFORMATION OR TECHNICAL ADVICE OR ASSISTANCE GIVEN BY PROMPTALERT SHALL CREATE A WARRANTY, ADDITIONAL LIABILITY, OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR THE LIMITATION OF LIABILITY IN CERTAIN CIRCUMSTANCES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE SUBSCRIBER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE COMMENCEMENT DATE. Without limiting the generality of the foregoing, the parties agree that to the extent permitted by law, the provisions of the Sales of Goods Act (Ontario), the Civil Code of Quebec and the United Nations Conventions on Contracts for the International Sales of Goods, other similar legislation or conventions do not apply to this Agreement.

12. LIMITATION OF LIABILITY

IN NO EVENT SHALL PROMPTALERT AND /OR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR ITS SUPPLIERS BE LIABLE TO THE SUBSCRIBER OR ANY THIRD PARTY FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING, BUT NOT LIMITED TO, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE SERVICE, EVEN IF PROMPTALERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS NEGLIGENT. THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE OF THE CAUSE OF ACTION INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH AND FAILURE TO SERVICE ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL PROMPTALERT’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO PROMPTALERT BY THE SUBSCRIBER UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION. IN NO EVENT SHALL PROMPTALERT’S MAXIMUM, CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT EXCEED FEES PAID TO PROMPTALERT FOR A PERIOD OF ONE YEAR.

13. INDEMNIFICATION

The Subscriber shall indemnify and hold promptALERT and its affiliates, subsidiaries, suppliers, reseller and agents and each of their respective directors, officers, employees, agents and professional advisors harmless from and against all claims whatsoever (including costs, judgments, charges and expenses including legal fees in connection therewith) brought, commenced or prosecuted against promptALERT for or in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to any and all liabilities, costs, charges and expenses which promptALERT sustains or incurs in or about or in relation to the Subscriber’s violation or breach of any term, condition, representation or warranty of this Agreement, any Content or data displayed, distributed or otherwise disseminated by the Subscriber using the Service or the Subscriber’s violation, alleged violation or misappropriation of any intellectual property right or non-proprietary right of a third party.

With respect to the indemnities provided herein, (i) the aggrieved party shall promptly notify the indemnifier in writing of the claim; (ii) the indemnifier shall have sole control of the defence and all related settlement negotiations with respect to the claim; and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defence of such claim.

14. SURVIVAL

All indemnification obligations, disclaimers of warranties and limitations of liability of this Agreement shall survive the termination or expiration of this Agreement. Sections 3, 4, 5, 6, 7(C), 8, 9, 11, 12, and 13 of the Terms and Conditions shall also survive the expiration and termination of this Agreement.

15. GOVERNING LAW

This Agreement is governed by, and is to be construed and interpreted in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in the Province of Ontario, and each of the parties irrevocably attorns to the exclusive jurisdiction of the courts of Ontario.

The Subscriber acknowledges and agrees that it grants its informed consent to waive a trial by judge and jury but not by judge alone. Such waiver shall be independent of the agreement to attorn to the exclusive jurisdiction of the courts of Ontario.

16. NOTICE

Unless otherwise specified, each notice to a party must be given in writing and delivered personally or by courier, sent by prepaid registered mail to the address set forth in the Order Form or transmitted by fax or electronically. Any notice, if delivered personally or by courier, will be deemed to have been given when actually received, if transmitted by fax or electronically before 3:00 p.m. on a business day, will be deemed to have been given on that business day, and if transmitted by fax or electronically after 3:00 p.m. on a business day, will be deemed to have been given on the business day after the date of the transmission.

17. GENERAL PROVISIONS

A. HEADINGS AND REFERENCES: The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular section, subsection or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to “Sections” are to sections, subsections and further subdivisions of sections of this Agreement.

B. EXTENDED MEANINGS: Unless otherwise specified, words importing the singular include the plural and vice versa and words importing gender include all genders. The term “including” means “including without limitation.”

C. SEVERABILITY: If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that term will not affect: the legality, validity or enforceability of the remaining provisions of this Agreement; or the legality, validity or enforceability of that provision in any other jurisdiction.

D. ASSIGNMENT: promptALERT may assign this Agreement without obtaining the consent of the Subscriber. The Subscriber may not assign this Agreement. This Agreement enures to the benefit of and binds the parties and their respective successors and permitted assigns.

E. WAIVER: No waiver of any provision of this Agreement is binding unless it is in writing and signed by the party entitled to grant the waiver. No failure to exercise and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision.

F. ENTIRE AGREEMENT: This Agreement, including any schedules hereto, and the Order Form constitute the entire agreement between the parties with respect to the subject matter and supersedes all prior negotiations and understandings. No provision may be amended or waived except in writing.

G. REMEDIES CUMULATIVE: The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. No single or partial exercise by a party of any right or remedy precludes or otherwise affects the exercise of any other right or remedy to which that party may be entitled.

H. COUNTERPARTS: This Agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same instrument. A party’s transmission by facsimile or by electronic signature of a copy of this Agreement duly executed by that party shall constitute effective delivery by that party of an executed copy of this Agreement to the party receiving the transmission. A party that has delivered this Agreement by facsimile shall forthwith deliver an originally executed copy to the other party or parties.

I. RELATIONSHIPS OF THE PARTIES: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.

L. NON-EXCLUSIVITY: Nothing in this Agreement will be construed to prevent promptALERT from marketing, licensing, selling or otherwise providing the Services or any aspects of promptALERT ' s technology or services to any third party.