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2MI-SSI-Software Solutions, Inc.’s VPCARE360 VEEP360 SAAS SUBSCRIPTION AGREEMENT

THE SERVICES ARE PROVIDED ONLY ON THE CONDITION THAT THE SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") BETWEEN SUBSCRIBER AND 2MI-SSI-SOFTWARE SOLUTIONS, INC (2MI-SSI). BY ACCEPTING THIS AGREEMENT OR BY USING THE SERVICES, SUBSCRIBER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT.

 

1. Definitions.
   “Order” means a purchase commitment mutually agreed upon between (1) 2MI-SSI and Subscriber, or (2) a 2MI-SSI authorized reseller and Subscriber.
   “Portal” means a web-based facility that is used by Subscriber to access and manage the Services.
   “Services” means VPTherapy360 or VPCare360.
   “Software” means 2MI-SSI’s proprietary software applications.
   “Software Upgrades” means certain modifications or revisions to the Software.
   “Subscriber” means the individual, company, jointly owned subsidiaries and their parent company, or other legal entity that has placed an Order and been configured to use the Software.
   “Subscription” means a non-exclusive, nontransferable right to use VPTherapy360 or VPCare360 in accordance with this Agreement and the Order.
   “Subscription Fees” means the agreed upon fees in an Order.
   “Subscription Term” means the agreed upon time period in an Order.
   “Virus” or “Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
   “2MI-SSI” means 2MI-SOFTWARE SOLUTIONS, INC., a North Carolina corporation with its principal place of business at 8300 Creedmoor Road STE 170-353. Raleigh, North Carolina 27612.

 

2. Subscription and Grant of Right to Use. Subject to the terms and conditions of this Agreement, 2MI-SSI will provide Subscriber the Subscription at the Permitted Capacity set forth in the Order for the Subscription Term. The subscriber may use VP Therapy or VP Care solely for Subscriber’s own internal business operations (not for the benefit of any other person or entity) during the Subscription Term, provided Subscriber has paid and continues to pay the Subscription Fees. 2MI-SSI may terminate provision of the Service at the end of a Subscription Term unless Subscriber continues to pay Subscription Fees for the Service. Subscription Fees are nonrefundable. 2MI-SSI may audit its systems to confirm Subscriber’s authorized use of the Services. The subscriber may not rent, lease or timeshare the Services or provide subscription services for the Services or permit others to do so. Subject to the terms of this Agreement, Subscriber may allow its agents and independent contractors to use the Services solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Services by any other entity is forbidden and a violation of this Agreement.

 

3. Provision of Services.

3.1 2MI-SSI will use commercially reasonable efforts to provide the Services for the Subscription Term.
3.2 If 2MI-SSI determines that the security or proper function of the Services would be compromised due to, hacking, denial of service attacks or other activities originating from or directed at Subscriber’s network, 2MI-SSI may immediately suspend the Services until the problem is resolved. 2MI-SSI will promptly notify and work with Subscriber to resolve the issues.
3.3 2MI-SSI may modify, enhance, replace, or make additions to the Services. 2MI-SSI may use Malware, Spam, and other information passing through the Services for the purposes of developing, analyzing, maintaining, reporting on, and enhancing the 2MI-SSI Services and products.
3.4 If Subscriber is using the Services to distribute Spam or Malware, or any other inappropriate manner, 2MI-SSI may suspend the Services until the problem is resolved.

4.Subscriber Obligations.

4.1 Subscriber will (a) comply with all applicable laws, statutes, regulations, and ordinances, (b) only use the Services for legitimate business, and (c) not use the Services to in any way to perform acts that may be deemed illegal.
4.2 Subscriber will defend, indemnify and hold 2MI-SSI harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with any claims, demands, suits, or proceedings (“Claims”) made or brought against 2MI-SSI by a third party alleging or related to Subscriber’s (i) violation of its obligations in this Section 4; (ii) infringement of intellectual property rights; (iii) civil or criminal offenses; (iv) transmission or posting of obscene, indecent, or pornographic materials; (v) transmission or posting of any material which is slanderous, defamatory, offensive, abusive, or menacing or which causes annoyance or needless anxiety to any other person; or (vi) transmission of information through the Service.

 

5. Intellectual Property Rights. The Services and all related intellectual property rights are the exclusive property of 2MI-SSI or its licensors. All right, title and interest in and to the Services, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Services remain exclusively with 2MI-SSI or its licensors. The Services are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Services. The Services contain material that is protected by patent, copyright and trade secret law, and by international treaty provisions. The subscriber may not remove any proprietary notice of 2MI-SSI or any third party. The Services include software products licensed from third parties. Such third parties have no obligations or liability to Subscriber under this Agreement but are third-party beneficiaries of this Agreement. All rights not granted to Subscriber in this Agreement are reserved to 2MI-SSI. No ownership of the Services passes to Subscriber. 2MI-SSI may make changes to the Services at any time without notice. Except as otherwise expressly provided, 2MI-SSI grants no express or implied right under 2MI-SSI patents, copyrights, trademarks, or other intellectual property rights.

 

6. Protection and Restrictions.

6.1 Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential. "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, prototypes, equipment, technical data, trade secrets and know-how, product plans, Services, services, suppliers, customer lists and customer information, prices and costs, markets, software, databases, developments, inventions, processes, formulas, technology, employee information, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information), which is designated as "Confidential," "Proprietary" or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Receiving Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which the Receiving Party can document (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality; (iii) is already in the possession of the Receiving Party at the time of disclosure; (iv) is lawfully obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
6.2 Subscriber will take all reasonable steps to safeguard the Services to ensure that no unauthorized person has access and that no unauthorized copy, publication, disclosure or distribution, in any form is made. The Services contain valuable, confidential information and trade secrets and unauthorized use or copying is harmful to 2MI-SSI. Subscriber may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Services or any part thereof. Subscriber may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Services, nor shall Subscriber attempt to create the source code from the object code for the Software. Any third party software included in the Services may only be used in conjunction with the Services, and not independently from the Services. Subscriber may not, and shall not allow third parties to, publish, distribute or disclose the results of any benchmark tests performed on the Services without 2MI-SSI’s prior written approval.

 

7. Limited Warranty.

7.1 For the Subscription Term, 2MI-SSI warrants that the Services will operate in substantial conformance with the then current 2MI-SSI published documentation under normal use. 2MI-SSI does not warrant that: (A) the Services will (i) be free of defects, (ii) satisfy Subscriber’s requirements, or (iii) operate without interruption or error.
7.2 2MI-SSI will use reasonable efforts to remedy any significant non-conformance in the Services which is reported to 2MI-SSI and that 2MI-SSI can reasonably identify and confirm. 2MI-SSI at its discretion will repair or replace any such non-conforming or defective Services, or refund a pro-rata portion of the unused Subscription Fees paid for the remainder of the then current term. This paragraph sets forth Subscriber’s sole and exclusive remedy and 2MI-SSI's entire liability for any breach of warranty or other duty related to the Services. Any unauthorized modification of the Services, tampering with the Services, use of the Services inconsistent with the accompanying documentation, or related breach of this Agreement voids the warranty. EXCEPT AS EXPLICITLY STATED AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.

 

8. Limitation of Liability. 2MI-SSI, ITS AFFILIATES, ITS LICENSORS OR RESELLERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF 2MI-SSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL 2MI-SSI'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO 2MI-SSI FOR THE APPLICABLE SERVICES OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE SERVICES THAT DIRECTLY CAUSED THE LIABILITY.

 

9. Termination. This Agreement is effective until the end of the Subscription Term, or until terminated by either party. Subscriber may terminate this Agreement at any time upon notice to 2MI-SSI however, Subscriber is not entitled to a refund of any prepaid or other fees. 2MI-SSI may terminate this Agreement if 2MI-SSI finds that Subscriber has violated the Agreement. Upon notification of termination by either party, Subscriber must cease using the VPTherapy360 or VPCare360 software. Sections 1, 5-9, and 12 shall survive the termination of this Agreement.

 

10. Data Privacy .Subscriber will comply with all applicable laws and regulations, including those of other jurisdictions that may apply to Subscriber, concerning the protection of personal data. Subscriber must obtain any required employee consents addressing the interception, reading, copying or filtering of emails and their attachments. Neither party will use any data obtained via the Service for any unlawful purpose.

 

11. Government Restricted Rights. The Services are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Services by the U.S. Government constitutes acknowledgment of 2MI-SSI's proprietary rights therein. Contractor or Manufacturer is 2MI-SSI

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12. General. For the purposes of customer service, technical support, and as a means of facilitating interactions with its end-users, 2MI-SSI may periodically send Subscriber messages of an informational or advertising nature via email. Subscriber acknowledges that 2MI-SSI may use Subscriber's company name only in a general list of 2MI-SSI customers. 2MI-SSI owns any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Subscriber relating to the Services. Subscriber may not transfer any of Subscriber’s rights to use the Services or assign this Agreement to another person or entity, without first obtaining prior written approval from 2MI-SSI. Notices sent to 2MI-SSI shall be sent to the attention of the Vice President of Sales at 8300 Creedmoor Road, STE 170-3523. Raleigh, NC 27612 USA. Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the federal laws of the United States and the laws of the State of North Carolina.  Both parties hereby consent to the exclusive jurisdiction of the state and federal courts in Raleigh, North Carolina, USA, for all claims.  Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities. This Agreement constitutes the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as reasonably to affect the intention of the parties. 2MI-SSI is not obligated under any other agreements unless they are in writing and signed by an authorized representative of 2MI-SSI.